IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100010924 


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 to general, under honorable conditions (GD).

2.  The applicant states he was wrongly accused, had no representation, his lawyer said sign the paper and he was gone.  He didn't understand what was happening.  After he served his time he thought he would get a good discharge.

3.  The applicant provides DD Form 214 (Certificate of Release or Discharge from Active Duty), 6 pages from his service record, and 3 pages from his service medical records.

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 on 15 July 1977, completed training, was awarded the military occupational specialty 76Y (Unit Supply Specialist), and was assigned to duty in Germany.

3.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), as follows;

* on 14 October 1977 for possession of marijuana
* on 5 September 1978 for drunk driving

4.  On 28 May 1979, the applicant was arrested for armed robbery of German nationals.  He was placed in military confinement effective 1 June 1979.

5.  On 9 July 1979, the applicant submitted an offer to plead guilty to the charges of attempted robbery, wrongful appropriation of a pistol, and carrying a concealed weapon.  He stated in that agreement that he had consulted with counsel and he was satisfied with that counsel.  The plea agreement was that any sentence of confinement would not exceed confinement for 18 months, total forfeiture of all pay and allowances, reduction to pay grade E-1, and a BCD.

6.  On 17 July 1979, in accordance with his pleas, a general court-martial found the applicant guilty of attempted robbery, wrongful appropriation of a pistol, and carrying a concealed weapon.  His sentence was confinement for 24 months, total forfeiture of all pay and allowances, reduction to pay grade E-1, and a BCD.

7.  On 24 September 1979, the court-martial convening authority approved the findings and sentence except for a reduction of the period of confinement to 18 months in accordance with the applicant's plea agreement.

8.  On 6 March 1980, the U.S. Army Court of Military Review affirmed the findings and sentence. and the applicant filed a petition for review to the U.S. Court of Military Appeals on 20 March 1980.

9.  The U.S. Court of Military Appeals denied the applicant's petion for review on 23 May 1980.

10.  General Court-Martial Order Number 366, dated 16 June 1980, states that the provisions of Article 71(c) having been complied with, the sentence was to be executed.

11.  The applicant was discharged on 11 September 1980 with a BCD.  He had 1 year, 10 months, and 16 days of creditable service with 468 days of lost time due to confinement.
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.

13.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.  It provides the following information:

	a.  an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty; 

	b.  a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge; and

	c.  a bad conduct discharge is a punitive discharge that can be given only as a result of an approved sentence of a general court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was wrongly accused, had no representation, his lawyer said sign the paper and he was gone.  He didn't understand what was happening.  After he served his time he thought he would get a good discharge.

2.  By his own statement at the time of his court-martial, the applicant was afforded counsel that he considered adequate.  Due process was complied with and at no time was he told or given any indication that he would receive any type of discharge other than a BCD.

3.  The record does not contain and the applicant has not provided any evidence that he did not have proper representation or that any of his rights were violated or ignored.

4.  The proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offenses for which he was court-martialed and discharged.

5.  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)                                         AR20100010924





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ABCMR Record of Proceedings (cont)                                         AR20100010924



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