IN THE CASE OF:	   

		BOARD DATE:	        15 October 2008

		DOCKET NUMBER:  AR20080012041 


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 be upgraded to honorable.

2.  The applicant states that he has two honorable discharges and that the penalty of a bad conduct discharge was not warranted.  He also contends that he has not been in any trouble since his discharge.

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 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 on 8 June 1976 for a period of 3 years.  He served as a materiel supplyman and was honorably discharged on 7 December 1978 for immediate reenlistment.  He reenlisted on 8 December 1978 for a period of 
3 years.  On 24 November 1981, he was honorably discharged for immediate reenlistment.  He reenlisted on 25 November 1981 for a period of 4 years.     

3.  On 13 June 1983, nonjudicial punishment was imposed against the applicant for using and possessing marijuana.  His punishment consisted of a reduction to E-4 (suspended), a forfeiture of pay, and extra duty (suspended).  On 3 October 1983, the suspended portions of the sentence were vacated. 

4.  On 16 December 1983, the applicant was convicted by a general court-martial of conspiring to commit larceny, violating a lawful general regulation, and two specifications of larceny.  After announcement of the findings, the Military Judge dismissed Charge II (solicit another to commit larceny), Charge V (receive stolen property), and additional Charge II (solicit another to commit larceny) for multiplicity.  He was sentenced to be reduced to E-1, to forfeit $100 pay per month for 2 months, to be confined at hard labor for 4 months, and to be discharged from the service with a bad conduct discharge.  On 7 February 1984, the convening authority approved the sentence.

5.  On 6 March 1985, the U.S. Army Court of Military Review set aside and dismissed the findings of guilty of Additional Charge I and its specification (larceny) and of Charge III and its specification (violating a lawful general regulation).  The court consolidated the findings of guilty for Charge IV (larceny) and additional Charge I (larceny).  The remaining findings of guilty and sentence were affirmed.  

6.  The convening authority’s action ordering the bad conduct discharge to be executed is not available.

7.  Accordingly, the applicant was discharged with a bad conduct discharge on 
8 August 1986 under the provisions of Army Regulation 635-200, chapter 
3, as a result of a court-martial.  He had served a total of 9 years, 10 months, and 19 days of active creditable service with 98 days of lost time due to being in confinement.  

8.  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. 

9.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

10.  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.

11.  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:

1.  Good post service conduct alone is normally not a basis for upgrading a discharge.

2.  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.

3.  The applicant’s prior honorable service was noted.  However, his last enlistment included one nonjudicial punishment, one general court-martial conviction, and 98 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.




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)                                         AR20080012041



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ABCMR Record of Proceedings (cont)                                         AR20080012041



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