RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 February 2008
	DOCKET NUMBER:  AR20070012132 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Mr. Antonio Uribe

Member

Mr. Ronald D. Gant

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 he did not commit the misconduct of which he was convicted.

3.  The applicant provides a Standard Form 180 (Request Pertaining to Military Records).

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 on 7 July 1977.  He completed basic training and advanced individual training and was awarded military occupational specialty 76P (Materiel Control and Accounting Specialist).

3.  On 17 August 1978, the applicant was convicted, contrary to his pleas, by a special court-martial of unlawful entry and of assault.  He was sentenced to be reduced to Private, E-1.

4.  The applicant’s records show that, on 13 February 1979, he was convicted, contrary to his pleas, by a general court-martial of stealing four helicopter axial pumps, of a value of about $1,663.00 per pump.  He was sentenced to be confined at hard labor for 12 months, to forfeit $169.00 pay per month for          12 months, and to be discharged with a bad conduct discharge.  He was to be confined in the U. S. Disciplinary Barracks, Fort Leavenworth, KS, or elsewhere as competent authority directed pending completion of appellate review.  He was assigned to Fort Knox, KY to complete his sentence to confinement.

5.  Prior to completion of the appellate review, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty.

6.  On 29 May 1980, prior to completion of the appellate review of his 13 February 1979 conviction, the applicant was convicted by a special court-martial, contrary to his pleas, of assaulting a military policeman in the execution of his military police duties by shoving and grabbing the military policeman with his hands and of wrongfully possessing some quantity of marijuana.  He was sentenced to a bad conduct discharge.

7.  The applicant presented two issues on appeal:  (1) Did the military judge err in denying a defense motion to suppress evidence of marijuana found in a trash can in the applicant’s room; and (2) was error committed when the applicant’s record of NJP under Article 15, UCMJ was admitted during the sentencing portion of his trial?

8.  The U. S. Army Court of Military Review found that the military judge did not err when he admitted the Article 15 during the sentencing portion of the applicant’s trial.

9.  The U. S. Army Court of Military Review did find that the applicant’s conviction for possession of marijuana was based upon an illegal search and seizure and set aside the finding of guilty of that specification and dismissed that charge.  The Court affirmed the sentence based on the error noted and the entire record.  

10.  On 24 June 1981, the applicant was discharged, pursuant to his court-martial sentence, with a bad conduct discharge.  He had completed 3 years,       2 months, and 24 days of creditable active service and had 317 days of lost time.

11.  On 22 August 1989, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.

12.  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.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  

14.  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's contentions relate to evidentiary matters which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.  It is noted that the applicant appealed his 29 May 1980 conviction; however, at that time he did not raise any issue related to the assault on a military policeman.

2.  Trial by court-martial was warranted by the gravity of the offense (assault on a military policeman in the execution of his duties) charged.  Conviction and discharge were effected in accordance with applicable law and regulations.  Considering his first conviction by court-martial, even while acknowledging that it appears his second conviction of 13 February 1979 had not completed the appellate process, the discharge resulting from his third conviction by court-martial appropriately characterizes the misconduct for which he was convicted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__klw___  __au____  __rdg___  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.




__Kenneth L. Wright___
          CHAIRPERSON




INDEX

CASE ID
AR20070012132
SUFFIX

RECON

DATE BOARDED
20080205
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
105.00
2.

3.

4.

5.

6.