IN THE CASE OF:
BOARD DATE: 20 November 2008
DOCKET NUMBER: AR20080012929
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 be upgraded.
2. The applicant states that he is working as a correctional officer, and he wants to go to school to be a parole officer.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 in the Regular Army on 20 June 1977. He was promoted to Staff Sergeant, E-6, on 10 September 1985. He last reenlisted on 8 July 1986 for 6 years.
3. On 6 November 1986, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for two specifications of failing to go at the time prescribed to his appointed place of duty and for breaking restriction. His punishment was reduction to Sergeant, E-5.
4. On 12 August 1987, the applicant was convicted, in accordance with his plea, of unlawful carnal knowledge. His was sentenced to be discharged with a bad conduct discharge and to be reduced to the lowest enlisted grade. The sentence was approved on 12 August 1987.
5. The applicant was placed on involuntary excess leave. On 13 June 1988, his bad conduct discharge was ordered executed.
6. On 5 July 1988, the applicant was discharged, pursuant to his sentence by court-martial, with a bad conduct discharge. He had completed a total of 10 years, 11 months, and 16 days of creditable active service with no lost time.
7. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U. S. Code, section 1552, the authority under which this Board acts, the ABCMR 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. The applicant's request has been carefully considered.
2. The severity of a court-martial sentence may be changed if clemency is determined to be appropriate; however, the opportunity to obtain better or different employment is an insufficient clemency basis on which to base upgrading a bad conduct discharge.
3. Based upon the facts in this case and the evidence provided, it was determined that no formal hearing was required.
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.
_______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) AR20080012929
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