IN THE CASE OF:	  

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080010184 


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, that his bad conduct discharge (BCD) be upgraded.

2.  The applicant states, in effect, that he was a victim of racial injustice. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request. 

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 he enlisted in the Regular Army on 1 May 1980.   He was trained as an Infantry Indirect Fire Crewman, in military occupational specialty (MOS), 11C.  He was promoted to pay grade E-3 effective 1 June 1981. 

3.  At a special court-martial on 24 November 1981, while serving overseas in Germany, the applicant was found guilty contrary to his pleas of burglariously breaking and entering the billets of another Soldier, with intent to commit larceny therein and for attempting to steal personal property having some value, belonging to another Soldier.  He was sentenced to be reduced to pay grade E-1, to a forfeiture of $367.00 pay per month for 6 months, to be confined at hard labor for 6 months, and to be discharged with a BCD.  

4.  On 19 April 1982, the United States Army Court of Military Review affirmed the findings and sentence.

5.  On 23 May 1982, that portion of the sentence that provided for a forfeiture of $367.00 pay per month for 6 months was suspended with the applicant having served the period of confinement.  He was restored to duty pending completion of an appellate review.  

6.  On 29 June 1982, the US Court of Military Appeals for the Armed Forces denied the applicant's petition for review.  

7.  On 27 July 1982, the general court-martial convening authority directed that the BCD be duly executed as the sentence had been timely affirmed.  The provisions of Article 71(c) having been complied with, the sentence was ordered executed.  

8.  On 1 September 1982, the applicant was discharged from the Army pursuant to the sentence of a special court-martial and he was issued a BCD.  He had served 1 year, 10 months, and 13 days of creditable service and he had 169 days of lost time due to being in confinement. 

9.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence duly executed.
11.  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.

12.  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, 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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulation.

2.  The evidence shows the applicant was tried by a special court-martial and he was found guilty contrary to his pleas of burglariously breaking and entering the billets of another Soldier, with intent to commit larceny therein and for attempting to steal personal property having some value, belonging to another Soldier.  He was discharged pursuant to the sentence of a special court-martial and he was issued a BCD after the sentence was affirmed.

3.  The applicant has not provided evidence to show that his discharge was unjust or evidence sufficient to mitigate the character of his discharge.

4.  There is no evidence, and the applicant has provided none, in the available records to demonstrate that he was the victim of racial injustice.

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  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.




_______ _ x  _______   ___
         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.

































xx.  Title 10, United States Code, section 1552, as amended, does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.