IN THE CASE OF:
BOARD DATE: 2 August 2008
DOCKET NUMBER: AR20080007322
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 that his Bad Conduct Discharge (BCD) be upgraded.
2. The applicant states he was an outstanding Soldier and was falsely accused. He was too indigent to hire legal counsel.
3. The applicant provides no additional evidence.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army for 4 years on 14 February 1980. He performed One-Station Unit Training (OSUT) at Fort Sill, OK and was awarded military occupational specialty (MOS) 13F (Fire Support Specialist). His first duty assignment was in Germany with Headquarters and Headquarters battery, 2nd Battalion, 33rd Field Artillery.
2. The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for, on/about 16 February 1982, being derelict in the performance of his duties by willfully failing to secure his assigned 1/4 ton truck (jeep). As punishment, he was reduced from Specialist Four (SP4/E-4) to Private First Class (PFC/E-3) and made to forfeit $153.00 pay per month for 1 month (suspended for 90 days, but later vacated on 5 May 1982).
3. On 28 September 1982, the applicant pled guilty pursuant to a pre-trial agreement and was convicted at a Special (BCD) Court-Martial of one specification of violating Article 86, UCMJ in that he was absent without leave for 88 days, and one specification of violating Article 121, UCMJ, larceny. A second specification Article 121 and a specification of Article 134 (Indecent Assault) were dismissed at trial. He was sentenced to be discharged with a BCD, to confinement at hard labor for 100 days, forfeiture of $367.00 of pay per month for 3 months, and reduction to Private (PV1/E-1). On 11 November 1982, the sentence was approved, and except for the part of the sentence extending to a bad conduct discharge, was ordered executed.
4. The applicant was transferred from Germany to the Installation Detention Facility, Fort Sill for service of his sentence. He completed his sentence on 9Â December 1982 and was placed on excess leave without pay pending completion of appellate review of his court-martial.
5. On 12 August 1983, the United States Army Court of Military Review having found the approved findings of guilty and the sentence correct in law and fact and having determined on the basis of the entire record that they should be approved, affirmed the findings of guilty and the sentence.
6. On 8 November 1983, the applicant's BCD was executed. His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows that he completed 3 years, 3 months, and 15 days of active service and had 161 days of lost time due to AWOL and confinement, and 334 days of excess leave.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 provides that a Soldier will be given a BCD pursuant only to an approved sentence to a general court-martial or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
8. Court-martial convictions stand as adjudged or modified by appeal through the judiciary 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 change a discharge due to matters which should have been raised in the appellate process, 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests a discharge upgrade. He alleges he was falsely accused and too poor to hire a lawyer.
2. The applicant was convicted by a Special Court-Martial empowered to adjudge a BCD. With qualified legal counsel from the Army Trial Defense Service, he went to trial and pled guilty to AWOL and larceny; therefore, his statements that he was falsely accused and did not have counsel are not persuasive.
3. Trial by court-martial 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.
4. In order to justify upgrading his BCD, the applicant must show to the satisfaction of the Board, that clemency is warranted. The applicant has failed to submit evidence that would satisfy this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__xxx___ __xxx___ __xxx___ 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.
XXX
_______ _ _______ ___
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) AR20080007322
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ABCMR Record of Proceedings (cont) AR20080007322
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