IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20100013528 


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, in effect, that his bad conduct discharge be upgraded. 

2.  The applicant states his discharge was already upgraded.

3.  The applicant provides no additional documentary evidence in support of this 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 records show that he enlisted in the Regular Army on 17 November 1978.  He reenlisted for 4 years on 24 June 1981.  He was awarded the military occupational specialty of infantryman.  The highest rank/grade he held was specialist four/E-4.
3.  General Court-Martial Order Number 87, dated 30 September 1983, shows the applicant was arraigned and tried for the specification of wrongfully appropriating two cassette recorders with a total value of about $1,317.00 and for burglariously breaking and entering a house with intent to commit wrongful appropriation therein.  He was found guilty of both specifications.  He was sentenced to forfeiture of $382 pay per month for 12 months, 1 year confinement, to be reduced to Private/E-1, and to be discharged from the service with a bad conduct discharge.  The sentence was adjudged on 27 July 1983.  On 30 September 1983, the convening authority approved the sentence.  The convening authority suspended confinement except for 10 months.

4.  On 1 May 1984, the findings of guilty and the sentence were affirmed by the U.S. Army Court of Military Review.

5.  General Court-Martial Order Number 346, dated 16 August 1984, shows the applicant's sentence was ordered duly executed.

6.  On 28 August 1984, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV, as a result of a court-martial.  He was given a bad conduct discharge.  The DD Form 214 the applicant was issued shows he completed a total of 5 years, 2 months, and 4 days of active service.  Item 29 (Dates of Time Lost during This Period) of this form contains the entry "830727-840301."

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 discharge with characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

8.  Army Regulation 635-200, paragraph 3-11, provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence was ordered duly executed.

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.  Historical files from the ABCMR fail to show the applicant's discharge was upgraded by the ABCMR. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was issued a bad conduct discharge pursuant to the approved sentence of a general court-martial for wrongfully appropriating two cassette recorders valued at about $1,317.00 and for burglariously breaking and entering a house with intent to commit wrongful appropriation therein.  The appellate review was completed and the affirmed sentence ordered duly executed.  Conviction and discharge were affected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  The applicant's entire military record was taken into consideration and given the seriousness of the offenses his service is appropriately characterized.

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.  Based on the foregoing, there is insufficient basis to upgrade the applicant's 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)                                         AR20100013528



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ABCMR Record of Proceedings (cont)                                         AR20100013528



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