IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090009124 


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 an honorable discharge.

2.  The applicant states, in effect, that he was in the military for 3 years and that he served well.  He states the only problem that he had during his service was he stole a small television because he was immature.  He states he is currently homeless and is seeking help from the Department of Veterans Affairs (VA).

3.  The applicant does not provide any supporting documents with 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 in the Regular Army on 10 July 1979 for a 3-year period of service.  He successfully completed basic and advanced individual training.  He was awarded military occupational specialty 95B (Military Police).

3.  The applicant was assigned to the 256th Military Police Company at Fort Hood, TX on 15 February 1981.

4.  On 6 May 1982, the applicant was convicted by a special court-martial at Fort Hood, TX for one specification of unlawfully entering the dwelling place of a specialist and for one specification of stealing a television with an AM/FM stereo, the lawful property of a specialist.  He was sentenced to a bad conduct discharge, confinement for 6 months, reduction to the rank of private/pay grade E-1, a forfeiture of $367.00 pay for 6 months, and an admonishment and reprimand.

5.  The convening authority approved only so much of the sentence as provided for confinement for 4 months, a forfeiture of $367.00 pay for 4 months, a bad conduct discharge, and reduction to E-1.

6.  On 22 December 1982, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.

7.  Headquarters Fort Hood, Texas Special Court-Martial Order Number 16, dated 18 March 1983, indicates the applicant's sentence had been affirmed, that the confinement portion of the sentence served, and that the discharge was ordered to be executed.

8.  On 5 April 1983, the applicant was discharged under the provisions of Army Regulation 635-200 based on his conviction by a court-martial.  His service was characterized as bad conduct.  His net active service was 3 years, 6 months and 15 days with 2 months and 10 days of lost time from 6 June to 16 August 1982 and 200 days of excess leave.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge.  It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that, the appellate review must be completed and affirmed sentence ordered duly executed.

10.  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 evidence shows the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  Court-martial convictions and sentences are unique to each offender and are based upon the independent and individualized judgment of the members of the court-martial. 

2.  Law prohibits any redress by this Board of the finality of a court-martial conviction.  This Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  The ABCMR does not upgrade discharges based solely on the passage of time or to establish entitlement to other benefits.

3.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or service that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge at this time.  

4.  As for the applicant's contention that he was immature, he had been on active duty for almost 2 years and 10 months when he was sentenced to a bad conduct discharge.  In addition, he was a military policeman, trained in and charged with enforcing laws, not breaking them.  Therefore, he demonstrated he possessed the ability to serve and there is no evidence that he was any less mature than other Soldiers of the same age who completed their service obligations.

5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.



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.

ABCMR Record of Proceedings (cont)                                         AR20090009124



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ABCMR Record of Proceedings (cont)                                         AR20090009124



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