IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100009306 


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 was not a bad Soldier.  He states he only made one mistake and the outcome of his court-martial was unjust.  He states his sentence was severe.

3.  The applicant provides no additional 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's military personnel records show he enlisted in the Regular Army on 24 May 1985 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 52D (Power Generation Equipment Repairer).

3.  On 6 November 1985, the applicant was assigned to the Service Battery, 4th Battalion, 29th Field Artillery, in Baumholder, Germany.

4.  On 10 June 1988, the applicant was found guilty before a special court-martial of:

* violating a lawful general regulation by wrongfully purchasing U.S. tax-free cigarettes for the production of income
* violating a lawful general regulation by wrongfully transferring U.S. tax-free cigarettes to an unauthorized person
* disobeying a lawful general regulation by soliciting four Soldiers to purchase rationed goods
* two specifications of assaulting a noncommissioned officer (NCO) in the execution of his office

5.  The applicant's sentence consisted of:

* reduction to private/pay grade E-1
* forfeiture of $400.00 per month for 5 months
* confinement for 5 months
* a bad conduct discharge

6.  On 11 August 1988, the convening authority approved the findings and the sentence.

7.  On 16 November 1988, the U.S. Army Court of Military Review affirmed the findings and the sentence of the general court-martial.

8.  On 18 April 1989, the applicant's sentence to a bad conduct discharge was ordered executed.

9.  On 26 April 1989, the applicant was issued a bad conduct discharge.  He had completed 3 years, 6 months, and 28 days of active service.  He had 191 days of lost time due to confinement.

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

11.  The Manual for Courts-Martial (MCM) Table of Maximum Punishments, 1969 Revised Edition, shows the maximum punishment for:
* 
assaulting an NCO in the execution of his office includes a dishonorable discharge and 5 years of confinement
* violating a lawful general regulation includes a dishonorable discharge and 2 years of confinement
* soliciting another to commit an offense includes the maximum punishment for the offense solicited, which in this case would include a dishonorable discharge and 2 years of confinement

12.  Army Regulation 635-200 (Personnel Separations) states 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.

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 contends his bad conduct discharge should be upgraded.  He contends his court-martial was unjust and the punishment too severe.

2.  The applicant submitted no substantive evidence to support his contentions.

3.  The applicant's sentence at his special court-martial included a bad conduct discharge and only 5 months of confinement.  The Table of Maximum Punishments in the MCM shows that he could have received 9 years of confinement and a dishonorable discharge.  Therefore, it is apparent that any mitigating circumstances were considered when he was sentenced.

4.  The evidence shows the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

5.  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.

6.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or achievement that would warrant special recognition.  The applicant's misconduct clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

7.  Based on the foregoing, there is insufficient basis to upgrade the applicant's bad conduct 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)                                         AR20100009306



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ABCMR Record of Proceedings (cont)                                         AR20100009306



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