IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100009411 


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 to a general discharge.

2.  The applicant states he was young and immature and he knows what he did was wrong.  He states it has been 26 years since he was discharged and he has been a responsible citizen, but his discharge is still affecting his ability to get jobs and go to school.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army for a period of 4 years on 
26 November 1979.  At the time the applicant was 18 years of age.  Upon completion of training he was awarded military occupational specialty 11B (Infantryman).

3.  On 4 November 1980, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for the following reasons on or about 27 June 1980:  

* stealing a check, of some value, the property of First Lieutenant
Gerald L. P-----
* with intent to defraud, falsely making in its entirety a certain check, which would, if genuine, apparently operate to the legal prejudice of another
* with intent to defraud, uttering a certain check, a writing which would, if genuine, apparently operate to the legal prejudice of another

	a.  His punishment was to be reduced to private (E-1), a forfeiture of $250.00 pay for 1 month, and placement in correctional custody for a period of 30 days.

	b.  The applicant appealed the NJP and submitted matters for consideration. On 13 November 1980, after consideration of all matters presented in appeal, the Commander, 7th Infantry Division, denied the appeal.

4.  The applicant was arraigned and tried at a special court-martial on 30 March 1983:

	a.  On 16 January 1983, he pled guilty and was found guilty of the following  charges and specifications:

* stealing a wallet, of some value, the property of Sergeant Richard W. P----
* with intent to defraud, falsely making in its entirety a certain check [in the amount of $100.00], which would, if genuine, apparently operate to the legal prejudice of another
* with intent to defraud, uttering a certain check [in the amount of $100.00], which would, if genuine, apparently operate to the legal prejudice of another
* wrongfully possessing some quantity of marijuana

   b.  He was sentenced to be reduced to private (E-1), confinement at hard labor for 3 months, a forfeiture of $382.00 pay for 3 months, and a bad conduct discharge.


   c.  On 19 May 1983, the convening authority approved the sentence and except for that part of the sentence extending to a bad conduct discharge, ordered it executed.  The record of trial was forwarded to The Judge Advocate General for review by a Court of Military Review.
   
5.  On 7 November 1983, the U.S. Army Court of Military Review, on consideration of the entire record, held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, the findings of guilty and the sentence were affirmed.

6.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, Special Court-Martial Order Number 33, dated 23 February 1984, confirmed that in the special court-martial case of the applicant, the sentence was affirmed.  The provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

7.  The applicant's DD Form 214 shows he was discharged on 26 March 1984 with a bad conduct discharge under Army Regulation 635-200 [Personnel Separations  - Enlisted Personnel], chapter 3 [Character of Service/Description of Separation], section IV [Dishonorable and Bad Conduct Discharge], as a result of court-martial (other).  At the time of his discharge he had completed 4 years,
1 month, and 17 days of net active service.  Item 29 (Dates of Time Lost During This Period) shows he had time lost from 30 March through 13 June 1983.

8.  On 27 November 1984, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his bad conduct discharge.  On 21 June 1985, the ADRB, after careful consideration of the applicant's military records and all other available evidence, determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

9.  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.



10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel:
	
   a.  Chapter 3, paragraph 3-10, states a Soldier will be given a bad conduct discharge [DD Form 259A] pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

	b.  Chapter 3, paragraph 3-7b, states 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 applicant contends his bad conduct discharge should be upgraded to a general discharge because he was young and immature at the time, he knows what he did was wrong, but he would like the opportunity to obtain better employment.

2.  Considering the applicant demonstrated the capacity for service by completion of training, his argument that he was young and immature is not supported by the evidence of record.  In addition, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Thus, the applicant's contentions are not sufficiently mitigating to warrant relief.

3.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

4.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

5.  After review of the applicant's military service record, it is concluded based on the seriousness of the offenses for which he was convicted clemency is not appropriate.

6.  The ABCMR does not upgrade an individual's discharge solely to enhance his or her eligibility for better employment.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20100009411



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ABCMR Record of Proceedings (cont)                                         AR20100009411



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