IN THE CASE OF:	  

		BOARD DATE:	 23 December 2010 

		DOCKET NUMBER:  AR20100012770 


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 upgrade of his bad conduct discharge (BCD) to a general discharge (GD).

2.  The applicant states that:

	a.  in 1981 he was convicted of another person’s theft based on a pawn ticket that was in his name;

	b.  it was never fully proved that he stole the property;

	c.  he knew he got into some trouble while serving in the Army; however, he was a good Soldier who enjoyed serving in the Army, wanted to make a career of it, and would serve again if he could;

	d.  he was only 21 years old and his cousin was just murdered by the police, resulting in his mental and physical problems that made it hard for him to adjust to military life; and

	e.  only two noncommissioned officers (NCOs) helped him address his physical and mental issues so he wrongfully rebelled, but now places himself at the mercy of this Board to grant him an upgrade of his BCD.

3.  The applicant provides no additional evidence.

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 records show he enlisted in the Regular Army on 9 December 1979.  He was trained in and awarded military occupational specialty 11C (Indirect Fire Infantryman).  His record shows he attained the rank of private first class (PFC)/E-3 on 1 November 1980 and this is the highest rank he attained while serving on active duty.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows that during his tenure on active duty he earned the Expert Marksmanship Qualification Badge with Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  His record documents no acts of valor or significant achievement.

4.  The applicant’s record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions between the period 5 November 1980 - 13 March 1981, for the wrongful possession of marijuana and for failing to go at the time prescribed to his appointed place of duty on five separate occasions.

5.  The applicant’s DA Form 20B (Insert to the DA Form 2-1/Record of Court Martial Conviction) shows that on 2 July 1981, a special court-martial (SPCM) found the applicant guilty of violating Article 121 (larceny) and Article 92 (failing to obey a lawful order) of the UCMJ.  The sentence was modified to only that portion that provided for a BCD.  It was approved on 15 September 1981.

6.  On 11 January 1983, Headquarters, U.S. Army Air Defense Center, Fort Bliss, TX, SPCM Order Number 2 directed that Article 71(c) having been complied with and the sentence having been affirmed, the applicant's sentence be duly executed.

7.  On 6 May 1985, the applicant was discharged accordingly.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3-11, as a result of court-martial.  It also shows that at the time of his discharge he had completed 5 years, 1 month, and 25 days of net active service this period with time lost from 2 July 1981 through 4 October 1981.  His DA Form 2-1 confirms he accrued 95 days of time lost due to confinement.

8.  On 12 August 1988, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable.  As a result, the board voted to deny his request for an upgrade.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 provides the policies and procedures for separating members with BCD.  It states, in pertinent part, that a Soldier will be given a BCD 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.  The applicant contends his BCD should be upgraded to a GD because it was never fully proven that he stole another Soldier’s property.  However, the evidence of record confirms an SPCM convicted him of larceny as well as failing to obey a lawful order.

2.  The evidence of record confirms 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 laws and regulation and his rights were protected throughout the court-martial appellate process.

3.  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.  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.  Further, the evidence of record includes the applicant’s acceptance of NJP on four separate occasions in addition to his SPCM conviction.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that his service was not sufficiently meritorious to support clemency given his disciplinary history and the seriousness of the offenses for which he was convicted.  The applicant’s records do not contain evidence to show he sought or was denied help for conditions which would have led to his misconduct.

5.  In view of the foregoing, the applicant’s request should be denied.

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)                                         AR20100012770



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ABCMR Record of Proceedings (cont)                                         AR20100012770



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