RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 December 2005
	DOCKET NUMBER:  AR20050001757 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Carl W. S. Chun

Director

Mr. Eric S. Moore

Analyst

The following members, a quorum, were present:


Mr. Shirley L. Powell

Chairperson

Mr. Melvin H. Meyer

Member

Mr. Allen L. Raub

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his bad conduct discharge be upgraded to an honorable discharge.

2.  The applicant states that clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad conduct discharge, that his record of court martial conviction, record of convictions by civil authorities and absence without leave (AWOL) were only isolated or minor offenses.  He also states that his ability to serve was impaired by his youth and immaturity, that his punishment was too harsh and that his discharge was based on minor offenses.

3.  The applicant provides a copy of a self help guide to discharge upgrading.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 18 May 1984, the dated of his discharge from active duty.  The application submitted in this case is dated 15 January 2005.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 9 January 1980 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 64C (Motor Transport Operator).  The highest grade he held in the military was private first class/pay grade E-3 with a date of rank of 1 October 1980.

4.  On 30 June 1981, the applicant was convicted contrary to his pleas by a special court-martial of conspiring to commit larceny of a television set and stereo equipment valued at $252.00; AWOL from 5 to 9 February 1981 and        9 to 10 February 1981; stealing the property of another Soldier and unlawful entry of another Soldier's room.  His sentence consisted of reduction to private/pay grade E-1, forfeiture of $334.00 per month for six months, confinement at hard labor for six months, and a bad conduct discharge.

5.  On 18 August 1981 the sentence was approved.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  On 4 May 1982, The Army Court of Military Review set aside Charge 1 (Conspiracy to commit larceny) and its specification, and reduced the applicant's sentence to reduction to E-1, forfeiture of $334.00 per month for          5 months, confinement at hard labor for 5 months and a bad conduct discharge

6.  Meanwhile, on 13 November 1981, Special Court Martial Order Number 423 remitted the unexecuted portion of the sentence to confinement. 

7.  On 16 November 1981, the applicant was placed on excess leave pending the outcome of the appellate process.  

8.  In an undated notification memorandum, the Office of The Judge Advocate General informed the applicant his record of trial would be forwarded to the United States Court of Military Appeals for review.  The opinion of the Court of Military Appeals is not available; however, a memorandum opinion on further review from the Army Court of Military Review reveals the Court of Military Appeals remanded the case and reversed the decision of the Court of Military Review.  Upon further review, the Army Court of Military Review reinstated the findings of guilty pertaining to Charge 1 and its specification.  The Court then affirmed the sentence approved by the convening authority; i.e., 6 months confinement at hard labor, 6 months forfeiture of $334.00 per month, reduction to E-1, and a bad conduct discharge.

9.  On 27 April 1984, United States Disciplinary Barracks, Special Court-Martial Order Number 11 directed that the bad conduct discharge be executed.

10.  On 18 May 1984, the applicant received a bad conduct discharge under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations), by reason of court-martial.  He had completed 3 years, 11 months, and 18 days of active military service with 144 days of lost time due to confinement and AWOL.

11.  Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

12.  On 11 September 1992, the Army Discharge Review Board (ADRB) considered the applicant’s request to upgrade his discharge.  The applicant's request was denied; the ADRB determined that the discharge was proper and equitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his youth and immaturity impaired his ability to serve and that his discharge was too harsh were carefully considered.  However, there is insufficient evidence to support these claims.  The evidence of record confirms he successfully completed training, was advanced to the pay grade of E-3 and completed more than a year of offense free service.  His excessive misconduct clearly supported his separation processing.  

2.  The applicant’s contends that his court martial convictions, record of convictions by civilian authorities and AWOL were only isolated or minor offenses. However, the evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. The record further confirms all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  Finally, it is concluded that the applicant’s discharge accurately reflects his overall record of undistinguished service.

3.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. In light of the seriousness of the offenses of which he was convicted, and absent the presentation of any significant mitigating factors, the applicant’s overall record of service does not support clemency in this case.  

4.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 9 October 1992 and he was officially notified by letter dated 4 December 1992.  As a result, the time for the applicant to file a request for correction or any error or injustice to this Board expired on 3 December 1995.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___alr___  ___mm__  ___slp___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




______Shirley L. Powell_____
          CHAIRPERSON


INDEX

CASE ID
AR20050001757
SUFFIX

RECON

DATE BOARDED
20051213
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
18 May 1984
DISCHARGE AUTHORITY
AR635-200
DISCHARGE REASON
Court Martial
BOARD DECISION
DENY
REVIEW AUTHORITY
MR CHUN
ISSUES         1.
144.9225
2.

3.

4.

5.

6.