IN THE CASE OF:
BOARD DATE: 30 September 2008
DOCKET NUMBER: AR20080011698
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 general court-martial conviction be overturned.
2. The applicant states, in effect, that he was unfairly and unjustly convicted of larceny on 30 October 1985. He contends that the military court failed to take into consideration his wifes drinking problem which had an adverse impact upon his behavior. He points out that he pled guilty to larceny of an amount under $500 and that the larceny charge has had a horrific impact on his ability to obtain and secure employment.
3. The applicant provides no additional evidence 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 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 on 9 August 1977 and trained as a tactical circuit controller and as a quartermaster and chemical equipment repairer.
3. The available records do not contain a copy of the applicants general court-martial order. However, the convening authoritys decision, dated 16 June 1986, shows the applicant was convicted by a general court-martial on 30 October 1985 and sentenced to be reduced to E-1, to forfeit all pay and allowances, to be confined for 30 months, and to be discharged from the service with a bad conduct discharge.
4. On 19 March 1986, the U.S. Army Court of Military Review affirmed the findings and sentence. On 16 June 1986, the convening authority ordered the bad conduct discharge to be executed indicating the sentence was affirmed.
5. Accordingly, the applicant was discharged with a bad conduct discharge on
25 July 1986 under the provisions of Army Regulation 635-200, chapter
3, as a result of a court-martial. He had served 8 years, 2 months, and 21 days of creditable active service with 269 days of lost time.
6. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general 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 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.
DISCUSSION AND CONCLUSIONS:
By law, this Board cannot disturb the finality of a court-martial conviction, and the applicant has not established a basis for granting clemency. Therefore, there is no basis for granting the applicants request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___XX_____ ___XX_____ ____XX____ 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.
_______XXXX _ _______ ___
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) AR20080011698
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ABCMR Record of Proceedings (cont) AR20080011698
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