IN THE CASE OF:	  

		BOARD DATE:	    14 January 2010

		DOCKET NUMBER:  AR20090011660 


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, upgrade of his bad conduct discharge (BCD) to an honorable discharge (HD).

2.  The applicant states, in effect, that he believes his punishment was too harsh of a treatment for unlawfully receiving one dollar and to discharge him with a BCD was too extreme and unjust.  He further states that upon his discharge he never received his final pay.

3.  The applicant provides the following documents in support of his application:  self-authored statement; DD Form 214 (Certificate of Release or Discharge from Active Duty); Headquarters, 8th Infantry Division (Mechanized), Special Court-Martial Order Number 4, dated 20 January 2, 1984; and DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).

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 (RA) and he entered active duty on 20 October 1982.  He was trained in and awarded military occupational specialty (MOS) 13B (Cannon Crewman).  His record documents no acts of valor or significant achievement.

3.  On 22 December 1983, a Special Court-Martial (SPCM) found the applicant guilty of violating Article 134 of the Uniform Code of Military Justice (UCMJ) by on or about 5 November 1983, unlawfully receiving one dollar, the property of another Soldier which he well knew had been stolen.  The resultant sentence from the Military Judge was a reduction to private (PV1)/E-1, forfeiture of $382.00 for four months, confinement at hard labor for four months, and a BCD.

4.  On 20 January 1984, the SPCM convening authority approved only so much of the sentence that provided for a BCD, confinement at hard labor for two months, forfeiture of $382.00 pay per month for two months, and reduction to PV1.  

5.  On 26 March 1984, the United States Army Court of Military Review, after consideration of the entire record, held that the findings of guilty and sentence approved by the convening authority in the applicant's case were correct in law and fact.  Accordingly, it affirmed the findings and the sentence.

6.  The record of trial pertaining to the applicant confirms the stipulation of facts included an admission of the applicant that he was in the barracks and observed the theft of the wallet of another Soldier, accepted the one dollar found in the other Soldier's pants, and put the dollar in his pants pocket.  It further confirms that in response to the applicant's appeal claim that his sentence was so extreme as to astound reasonable people, the Government appellate counsel responded that the crimes of the applicant's sort occupied a special niche of infamy in military jurisprudence due to the distrust, reduction in morale and breakdown in discipline these crimes cause.  

7.  On 10 September 1984, GCM Order Number 138, issued by the United States Army Correctional Activity, Fort Riley, Kansas, directed that, Article 71(c) of the UCMJ having been complied with and the sentence having been affirmed, execution of the BCD.

8.  On 2 October 1984, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  The DD Form 214 he was issued upon his separation shows he was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial and that he received a BCD.  This document also confirms he completed a total of 1 year, 9 months, 18 days of creditable active military service.

9.  On 17 September 1985, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available 
evidence determined that he had been properly and equitably discharged, and it voted to deny his request for a change to the characterization of his service and/or to the reason of his separation.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 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 ordered duly executed.  

11.  Paragraph 3-7a of the same regulation provides that an HD 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.  Paragraph 3-7b provides that a general discharge (GD) 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 (HD).  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

12.  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 contention that his BCD was too harsh and unjust for the offense committed was carefully considered.  However, there is insufficient evidence to support this claim.

2.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.  His record reveals no acts of valor or significant achievement and his overall record of service is not sufficiently meritorious to support an upgrade of his BCD that resulted in his court-martial conviction.  Conviction and discharge were effected in accordance with applicable law and regulations.  

3.  Further, the record of the applicant's trial confirms the applicant stipulated to the fact he was in the barracks and witnessed the theft of another Soldier's wallet and accepted a dollar found in the other Soldier's pants.  It further shows that the applicant raised the harshness of his sentence in his appeal and that in responding to his appeal, the Government appellate counsel commented that crimes of the sort committed by the applicant occupy a special niche of infamy in military jurisprudence due to the distrust, reduction in morale and breakdown in discipline these crimes cause.  

4.  Furthermore, any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and the nature and impact of the type committed by the applicant on the good order and discipline of the Army, as outlined by the Government appellate counsel in the record of trial, it would not be appropriate grant clemency in this case.  

5.  Additionally, the applicant's contention that he never received his final pay was carefully considered.  The evidence of record confirms the Military Judge approved only a forfeiture of $382.00 for two months from the applicant's pay and allowances.  There is no available evidence in his military record nor does he provide any evidence that confirms he never received his final pay.  As a result there is insufficient evidence to support this claim.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily 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.
ABCMR Record of Proceedings (cont)                                         AR20090011660



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ABCMR Record of Proceedings (cont)                                         AR20090011660



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