BOARD DATE: 23 May 2012 DOCKET NUMBER: AR20110021583 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests upgrade of his bad conduct discharge (BCD) to an honorable discharge. He also requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty (AD)) to show: * his year of birth as 1959 instead of 1958 * his date of discharge as 20 June 1980 instead of 18 January 1982 2. He states he is requesting upgrade of his discharge so he can reenter the military. He acknowledges and understands his actions that caused him to receive the BCD were inappropriate and he accepts full responsibility. However, he states he made a mistake and it is a blemish that he feels he should not have to live with for the rest of his life. 3. He provides a self-authored statement. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army (RA) on 14 May 1976. 3. The following documents and all other documents with a birth year contained in his official military personnel file (OMPF) show his year of birth as "1958." * DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 30 April 1976 * DD Form 1584 (National Agency Check Request), dated 18 May 1976 * Servicemen's Group Life Insurance Election (SGLI), dated 11 May 1980 4. His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on five occasions for offenses including: * being absent without leave from 12 to 13 June 1977 * breaking restriction * seven incidents of being absent from his place of duty * failing to obey a lawful order given by a commissioned officer 5. On 21 April 1980, he was convicted by a special court-martial of: * one specification of conspiring to commit larceny * three specifications of stealing property of the U.S. Government * unlawful entry with the intent to commit larceny 6. The court sentenced him to reduction to private (PV1)/E-1, forfeiture of $299.00 pay per month for 5 months, confinement at hard labor for 5 months, and a BCD. On 25 June 1980, the convening authority approved the sentence. The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. He was placed in military confinement from 21 April to 19 August 1980. 7. On 3 December 1980, the applicant again departed AWOL. 8. On 26 March 1981, U.S. Army Court of Military Review affirmed the findings and sentence. 9. Special Court-Martial Order Number 108, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, NC, dated 11 September 1981, Article 71(c) having been complied with, the sentence to a BCD was ordered duly executed. 10. Orders 9-15, issued by the same headquarters, dated 15 January 1982, reassigned the applicant to the Separation Transfer Point for separation processing. 11. On 18 January 1982, the applicant was discharged in absentia under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial. The DD Form 214 issued at the time shows he was discharged with a BCD. It further shows he completed 4 years, 2 months, and 20 days of total active service. 12. His DD Form 214 also shows in: * Item 5 (Date of Birth) – 17 December 1958 * Item 12a (Date Entered Active Duty (AD) This Period) – "76  05  14" * Item 12b (Separation Date This Period) – "82  01  18" * Item 12c (Net Active Service This Period) – "04  02  20" * Item 21 (Signature of Member being Separated) – "SM [Service Member] not available for signature" * Item 24 (Character of Service) – BCD * Item 25 (Separation Authority) – Chapter 11, Army Regulation 635-200 * Item 26 (Separation Code) – "JJD" * Item 27 (Reenlistment Code (RE)) – "3; 3B" * Item 28 (Narrative Reason for Separation) – As a result of court-martial * Item 29 (Date of Time Lost During This Period) – 12 June 1977 - 12 June 1977; 21 April 1980 - 19 August 1980; and 3 December 1980 - 18 January 1982 13. On 1 October 1982, the applicant appealed to the Army Discharge Review Board (ADRB) for an upgrade his discharge. On 11 July 1983, after careful consideration of the applicant's military records and all other available evidence, the board determined he was properly and equitably discharged and denied his request. 14. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 establishes policy and procedures for separating members with a dishonorable or BCD. It provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence must be ordered duly executed. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. 16. Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214. The regulation states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. It states for: * Item 12a, enter the date of the first day of the last immediate reenlistment for which a DD Form 214 was not issued * Item 12b, self–explanatory * Item 12c, all service entered will be less time lost and time lost after expiration of term of service DISCUSSION AND CONCLUSIONS: 1. Documents contained in the applicant's available records to include his Enlistment/Reenlistment Document, National Agency Check Request, and his SGLI, show his year of birth as "1958." He has provided no evidence to show his year of birth is otherwise. Therefore, there is an insufficient evidentiary basis for changing his year of birth on his DD Form 214. 2. Evidence of record shows the applicant entered active duty on 14 May 1976. During his period of service, he was AWOL on 12 June 1977 for a period of 1 day; in military confinement from 21 April to 19 August 1980 for a period of 3 months and 29 days; and again AWOL from 3 December 1980 to his date of discharge on 18 January 1982 for a period of 1 year, 1 month, and 15 days. His total time lost equaled 1 year, 5 months, and 15 days. Although it appears he served for 5 years, 8 months, and 5 days based on his date of entry on active duty and his separation date, his net active service is calculated less time lost and time lost after expiration of term of service. There is no evidence and he has not provided any to show that his date of discharge should be listed as 20 June 1980. Therefore, there is no basis for granting this portion of his request. The following is provided to facilitate this issue: 82 01 18 Separation date this period (Item 12b) - 76 05 14 Date entered active duty this period (Item 12a) = 5 8 5 (+1 day [Last day inclusive]) - 1 5 15 Time lost (AWOL and Confinement) = 4 2 20 Net active service this period (Item 12c) 3. The applicant was convicted by a special court-martial which was warranted by the gravity of the offenses charged at the time. His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted. 4. He was given a BCD pursuant to an approved sentence of a special court-martial. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met and his rights were fully protected. 5. Based on his overall record, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge to either an honorable or a general discharge. 6. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. Given his undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate. As a result, clemency is not warranted in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _X____ _X_______ ___X_____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _________X______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20110021583 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110021583 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1