RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 January 2008
	DOCKET NUMBER:  AR20070009870 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Qawiy A. Sabree

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. 

2.  The applicant states, in effect, that not all parties involved received the same punishment. 

3.  The applicant did not provide any supporting evidence with his application.

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 Regular Army on 24 May 1979 for a 4-year enlistment period.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 63B (Light Wheel and Power Generator Mechanic).  The highest rank he attained while serving on active duty was private first class/pay grade E-3.

3.  The applicant's disciplinary history includes his acceptance of four nonjudicial punishments (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  Records show he accepted NJP on 27 June 1980, for possession and use of marijuana; on 14 July 1980, for communicating a threat to a superior noncommissioned officer; on 28 September 1981, for disrespectful language to a superior noncommissioned officer; and on 4 March 1982 for failure to go to his appointed place of duty on or about 18 February 1982.

4.  On 10 March 1982, the applicant was convicted by a special court-martial (SPCM) for stealing money in the value of $620.00 from a junior enlisted Soldier a violation of Article 121 of the Uniform Code of Military Justice.  His sentence consisted of forfeiture of $300.00 pay for four months, confinement at hard labor for four months, and to be discharged from the service with a bad conduct discharge.  

5.  On 1 June 1982, the convening authority approved the sentence, but the execution of that portion of the sentence thereof adjudging forfeitures in excess of $300.00 per month for three months and confinement at hard labor in excess of three months was suspended for three months with a provision for automatic remission.  The record of trial was forwarded to the Army Court of Military Review for appellate review.  

6.  On 5 August 1982, the United States Army Court of Military Review affirmed the findings of guilty and approved the sentence. 

7.  On 10 November 1982, the convening authority ordered the bad conduct discharge executed. 

8.  The applicant's DD Form 214 shows that he was discharged on 6 December 1982 under the provisions of Army Regulation 635-200 (Enlisted Personnel Management System) because of a conviction by a court-martial.  His service was characterized as a bad conduct discharge and he was issued a Bad Conduct Discharge Certificate.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge.  It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that, the appellate review must be completed and affirmed sentence ordered duly executed.

10.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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.

11.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because not all parties involved received the same punishment.

2.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offense for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  He provided no evidence to the Board to show that other Soldiers similarly situated received lesser punishments.  Even if this were true, that alone is not a basis for relief as court-martial sentences are unique to each offender and are based upon the independent and individualized judgment of the members of the court-martial. 

3.  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.  The ABCMR does not upgrade discharges based solely on the passage of time.

4.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge at this time.  

5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__QAS__  __CLG___  __JRS__  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.





___Curtis L. Greenway__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080115
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.