IN THE CASE OF:
BOARD DATE: 7 August 2008
DOCKET NUMBER: AR20080010060
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, in effect, clemency in the form of a discharge upgrade.
2. The applicant states his upgrade was overlooked by whoever handles the paperwork. This correction is very important to him because, without it, he can't do anything.
3. The applicant provides no additional documentation.
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 applicants 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 applicants 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 and served in the Regular Army from 7 October 1977 in military occupational specialty (MOS) 36K (Tactical Wire Operator). Following one-station unit training, he was sent to Germany for duty with the 2nd Armored Cavalry Regiment.
3. On 8 November 1979, the applicant, in accordance with his pleas of guilty, was convicted by a Special Court-Martial for:
a. violating Article 109, Uniform Code of Military Justice (UCMJ), in that he did, at a German drugstore in Bayreuth, GE, on or about 3 August 1979, willfully and wrongfully damage a plate glass window and cameras on display therein by means of throwing a rock, the amount of damage being in the sum of about $833.33;
b. Violating Article 121, UCMJ, in that he did, at Bayreuth, GE, on or about 3 August 1979, steal a camera with accessories, of a value of about $55.55, the property of a German civilian; and
c. violating Article 130, UCMJ, in that he did, at Bayreuth, GE, on or about 3 August 1979, unlawfully enter a German drugstore with intent to commit larceny.
4. The applicant was sentenced to be discharged with a Bad Conduct Discharge, to be confined at hard labor for 4 months, to forfeit $298.00 pay per month for 4 months, and to be reduced to private (PVT/E-1). The convening authority approved only so much of the sentence as provided for 3 months' confinement, forfeiture of $200 pay per month for 3 months, reduction to E-1, and a BCD. The applicant was transferred to the United States Disciplinary Barracks, Fort Leavenworth, KS for service of his sentence to confinement.
5. The US Army Court of Military Review affirmed the findings and sentence on 17 April 1980. The applicant's Bad Conduct Discharge was executed on 22 September 1980.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, paragraph 3-11, 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.
7. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with The Military Justice Act of 1983 (Public Law 98-209) and 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 was convicted of serious crimes while serving in Germany. 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. There is no evidence the applicant has been awarded an upgrade which has been overlooked, and discharges are not automatically upgraded.
2. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust, or in this case, 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.
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