IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007025 


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 his bad conduct discharge be upgraded to a general discharge.

2.  The applicant states:

* He is very remorseful for his past actions
* He accepts responsibility
* He was very young at the time and did not think of the consequences
* It cost him a military career

3.  The applicant provides no documentary evidence 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 was born on 26 March 1960.  He enlisted in the Regular Army on 7 May 1979 for a period of 3 years.  He successfully completed training and was awarded military occupational specialty 19E (armor crewman).

3.  On 11 August 1980, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty (morning formation).  His punishment consisted of extra duty and restriction. 

4.  On 23 August 1980, nonjudicial punishment was imposed against the applicant for destroying property of another Soldier by throwing a rock through the windshield of his vehicle.  His punishment consisted of a reduction to E-2, a forfeiture of pay, and restriction. 

5.  On 4 December 1980, the applicant was convicted by a general court-martial of unlawful entry with intent to commit larceny and larceny.  He was sentenced to be reduced to pay grade E-1, to forfeit all pay and allowances, to be confined at hard labor for 5 years, and to be discharged from the service with a dishonorable discharge.  On 8 January 1981, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 7 months, forfeiture of all pay and allowances, and reduction to E-1.

6.  On 20 April 1981, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

7.  On 12 August 1981, the convening authority ordered the bad conduct discharge to be executed.

8.  Accordingly, the applicant was discharged with a bad conduct discharge on 24 August 1981 under the provisions of Army Regulation 635-200, chapter 11, as a result of a court-martial.  He had served a total of 1 year, 9 months, and 26 days of creditable active service with 263 days of lost time.

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states 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.

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.

11.  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.  Age is not a sufficiently mitigating factor.  The applicant was 19 years old when he enlisted and he successfully completed training.     

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's record of service included two nonjudicial punishments, one general court-martial conviction, and 263 days of time lost.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general 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)                                         AR20100007025





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ABCMR Record of Proceedings (cont)                                         AR20100007025



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