RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070009924 


	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

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. David K. Haasenritter

Chairperson

Mr. James R. Hastie

Member

Mr. Edward E. Montgomery

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 an upgrade of his bad conduct discharge to a general discharge. 

2.  The applicant states that he made a bad decision.

3.  The applicant provides a self-authored letter, dated 8 December 2006, in support of 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's record shows that he enlisted in the Regular Army on 21 September 1979 for a period of three years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  The highest rank he attained during his military service was private first class/pay grade E-3.

3.  The applicant’s record further shows that he was awarded the Army Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Marksman Marksmanship Qualification Badge with Grenade Bar.  The applicant's record does not show any significant acts of valor during his military service.

4.  On 28 August 1981, the applicant pled guilty at a Special Court-Martial to one specification of wrongfully appropriating a turntable valued at about $315, the property of another Soldier, on or about 23 July 1981; and one specification of wrongfully possessing some amount of marijuana, on or about 29 July 1981.  
The Court-Martial sentenced the applicant to reduction to the grade of private/pay grade E-1, forfeiture of $334 pay per month for six months, confinement at hard labor for three months, and a bad conduct discharge.  

5.  Headquarters, 2nd Armored Division, Fort Hood, Texas, Special Court-Martial Order Number 31, dated 14 October 1981, shows that only so much of the applicant’s sentence as provided for a bad conduct discharge, confinement at hard labor for three months, forfeiture of $334 pay per month for four months, and reduction to the grade of private/pay grade E-1, was approved. 

6.  On 2 April 1982, the U.S. Court of Military Appeals denied the applicant’s Petition for Grant of Review.

7.  Headquarters, 2nd Armored Division, Fort Hood, Texas, Special Court-Martial Order Number 14, dated 19 April 1982, shows that the applicant’s sentence of a bad conduct discharge, confinement at hard labor for three months, forfeiture of $334 pay per month for four months, and reduction to the grade of private/pay grade E-1 was affirmed.

8.  The applicant was discharged on 9 July 1982.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that the applicant was discharged with a bad conduct discharge in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separations) as a result of trial by court-martial.  This form further confirms that he completed 2 years, 6 months, and 6 days of creditable military service and had 105 days of lost time due to confinement.  

9.  On 20 June 1985, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10. In a self-authored statement, dated 8 December 2006, the applicant states, in effect, that he was young and immature.  He further adds that he had never been disciplined before, except for the wrongful appropriation of the turntable and use of marijuana.  He expresses regret that he has not had the opportunity to apologize to the owner of the turntable.  He adds that prior to his court-martial, he had been in civilian confinement for 30 days for not returning a $500 bike and that he was scared.  He also states that since his discharge, he has stayed out of trouble and wishes he could be a part of the Army that made him the man that he is today. 

11.  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.

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.

13.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  Evidence of record shows that the applicant was convicted by a Special Court-Martial, which was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  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.

3.  After review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, the applicant is not entitled to relief.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__dkh___  __jrh___  __eem___  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.



						David K. Haasenritter
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.