BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090019415 


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 (BCD) be upgraded.

2.  The applicant states his court-martial was unjust and coerced for the nature of his offenses and cooperation with the panel.

3.  The applicant provides no additional documentary evidence in support of this 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 and entered active duty on 18 June 1981.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).
3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he earned the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Marksmanship Qualification Badge with Hand Grenade Bar, and the Army Service Ribbon during his active duty tenure.  His record documents no acts of valor or significant achievement.  

4.  On 10 December 1982, a general court-martial (GCM) found the applicant guilty of violating two specifications of Article 78 of the Uniform Code of Military Justice (UCMJ):

   a.  by knowingly assisting another Soldier who had committed house breaking and larceny of stereo components of a value of about $275.00 by helping to move the stolen property from room 209 of building 12004 to another area of the building to prevent the apprehension of the Soldier on 16 August 1982.

	b.  the applicant's sentence was reduction to the rank of private (PV1)/E-1, discharge from the service with a BCD, confinement at hard labor for 9 months, and a forfeiture of $200 pay for 9 months.  

5.  On 18 February 1983, the court-martial convening authority approved so much of the sentence as provided for a BCD, confinement at hard labor for 
8 months, a forfeiture of $200 pay for 9 months, reduction to the rank of PV1/E-1, and directed that the applicant be placed in confinement pending the appellate review process.  

6.  Effective 19 May 1983, the applicant was placed on excess leave pending appellate review of his BCD.

7.  On 16 August 1983, the U.S. Army Court of Military Review (USACMR) affirmed the findings of guilty and the sentence.  On 24 January 1984, the USACMR denied the applicant's petition for review.

8.  U.S. Army Correctional Activity, Fort Riley, Kansas, GCM Order Number 59, dated 7 February 1984, confirmed the applicant's conviction and the sentence had been affirmed and directed, Article 71(c) of the UCMJ having been complied with, the applicant's sentence be duly executed.  On 21 February 1984, the applicant was discharged with a BCD, under the provisions of chapter 3, Army Regulation 635-200, by reason of court-martial.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated, in pertinent part, that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

11.  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.

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 court-martial was unjust and coerced was carefully considered.  However, there is insufficient evidence to support this claim.

2.  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 absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  



3.  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)                                         AR20090019415



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ABCMR Record of Proceedings (cont)                                         AR20090019415



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