IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20090021826 


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. 

2.  The applicant states he stayed a year longer to work on his clemency but the program was ended and he was released a month before he finished it.  He further states that he is trying to change his life even at the age of 51.

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 military records show that he enlisted in the Regular Army on 10 August 1978.  He was awarded the military occupational specialty of artillery repairman.  The highest rank/grade he held was private/E-2.

3.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions during the period 9 June to 10 December 1980 for cutting four tires of two military vehicles, for twice failing to go at the time prescribed to his appointed place of duty, and for three times absenting himself from his appointed place of duty.

4.  On 23 June 1981, a special court-martial convicted the applicant of assisting another Soldier in the distribution of portions of stolen stereo equipment to several individuals to prevent apprehension of the other Soldier and by assisting in the plans to dispose of the property when it became known that the other Soldier was being investigated by the U.S. Criminal Investigation Command (USACIDC, also known as CID).  He was found guilty of the specification and charge and his sentence included a bad conduct discharge.  The sentence was adjudged on 23 June 1981.

5.  On 26 February 1982, the findings of guilty and the sentence were affirmed by the U.S. Army Court of Military Review.

6.  On 11 June 1982, the applicant submitted a request for clemency.  Contained in his records are three letters recommending favorable consideration for clemency.

7.  His commanders recommended disapproval of his request for clemency due to the seriousness of the offense and his previous record of NJP.  The Staff Judge Advocate's Office also recommended disapproval based on the seriousness of the offense and the applicant's past record.  On 18 June 1982, his request for clemency was disapproved.  
 
8.  Special Court-Martial Order Number 54, dated 28 June 1982, shows the sentence was ordered duly executed.

9.  Accordingly, on 2 July 1982, the applicant was given a bad conduct discharge under the authority of Special Court-Martial Order Number 54.  His DD Form 214 shows he completed 3 years, 9 months, and 16 days of active service.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  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 discharge with characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

12.  Army Regulation 635-200, paragraph 11-2, provides that a Soldier will be given a bad conduct discharge 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.

13.  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 commander imposed NJP on two occasions and he was issued a bad conduct discharge pursuant to the approved sentence of a special court-martial conviction for assisting another Soldier in the distribution of portions of stolen stereo equipment to several individuals to prevent apprehension of the other Soldier and by assisting in the plans to dispose of the stolen property.  The appellate review was completed and the affirmed sentence ordered duly executed.  Conviction and discharge were affected in accordance with applicable laws and regulations.

2.  The applicant's entire military record was taken into consideration but, given the seriousness of the offense for which he was convicted, his service is appropriately characterized.

3.  Any redress by this ABCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR 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.  As a result, clemency is not warranted in this case.

4.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge.

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)                                         AR20090021826



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ABCMR Record of Proceedings (cont)                                         AR20090021826



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