IN THE CASE OF:	  

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090013558 


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 (BCD) be upgraded.

2.  The applicant states that he was told by a captain his discharge would be upgraded 6 to 12 months after he was separated.  

3.  The applicant provides a self-authored statement 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’s record shows he enlisted in the Regular Army on 
16 January 1980.

3.  Special Court-Martial (SPCM) Order Number 131, Headquarters, Fort Carson and 4th Infantry Division (Mechanized), Fort Carson, CO, dated 27 October 1981, shows the applicant was sentenced to a forfeiture of $334.00 pay for
6 months, 6 months in confinement at hard labor, and a BCD.  The convening authority suspended the sentence to confinement and the forfeitures in excess of 
4 months but approved the BCD.  The sentence was adjudged on 8 April 1981.

4.  On 10 August 1981, the U.S. Army Court of Military Review affirmed the findings of guilty and found the sentence correct in law and fact and affirmed the sentence.

5.  On 27 October 1981, the convening authority ordered the BCD executed.  

6.  The applicant's DD Form 214 shows he was discharged on 21 December 1981 under the provisions of chapter 11, Army Regulation 635-200 by reason of court-martial, desertion with a bad conduct.  At the time of discharge the applicant had completed 1 year, 2 months, and 28 days of net active service and he had 504 days of lost time under Title 10, U.S. Code, section 972, from 17 May 1980 to 19 January 1981 and from 8 April to 21 December 1981.

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(f), the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction nor is the Board authorized to take action with respect to court-martial and related administrative records pertaining to court-martial cases, except as described below.  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.  The Board also has the limited authority to correct records to accurately reflect appellate actions.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by an SPCM and he received a BCD.  In the absence of evidence to the contrary, it is presumed that a trial by an SPCM was warranted by the nature of the offenses for which the applicant was charged and convicted and that the applicant's sentence is commensurate with the misconduct for which he was convicted.  As a result, clemency is not warranted in this case.

2.  There are no provisions in Army regulations or the statutes for automatically upgrading a discharge after a period of time has elapsed.  The applicant must provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant an upgrade.  Therefore, the applicant's contention that his discharge merited an upgrade 6 to 12 months after its imposition is not sufficient as a basis for relief. 

3.  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 record of service, the seriousness of the offense for which he was convicted and which occurred over a period of time, and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  

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)                                         AR20090013558



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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