IN THE CASE OF:
BOARD DATE: 12 January 2011
DOCKET NUMBER: AR20100015821
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 general.
2. The applicant states it happened 28 years ago in 1982.
3. The applicant did not provide any additional documentation.
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. On 2 July 1980, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty 24M (Vulcan Systems Mechanic).
3. The applicant's DA Form 2-1 (Personnel Qualification Record Part II) shows:
a. in item 18 (Appointments and Reductions) that between January 1982 and April 1982 the applicant was reduced from E-3 to E-1 and
b. in item 21 (Time Lost) that he was absent without leave for 6 days in April 1982 and imprisoned for 430 days from November 1982 to January 1984.
4. Records show the applicant accepted nonjudicial punishment on 26 August 1981 for failure to go to battery formation and for sleeping on duty; on 8 January 1982 for failing to go to guard detail; and on 21 April 1982 for being absent without authority from on or about 1440 hours, 14 April 1982, until on or about 2350 hours, 20 April 1982, causing him to miss his overseas flight.
5. General Court-Martial Order Number 2, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky, dated 12 January 1981, shows that the applicant was arraigned and tried for:
* charge I (one specification) for violation of Article 130 (larceny)
* charge II (one specification) for violation of Article 121 (stealing the property of another Soldier with a total value of about $560.00)
* additional charge I (one specification) for violation of Article 134 (receiving the stolen property)
6. The applicant pleaded not guilty to all charges and specifications. He was found not guilty of charge I and its specifications and the additional charge I and its specification. He was found guilty of the specifications of charge II with exceptions and substitutions for a total value in excess of $360.00. The applicant was sentenced to be discharged from the service with a bad conduct discharge, to forfeit all pay and allowances, and to confinement at hard labor for 18 months.
7. General Court-Martial Order Number 427, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, dated 31 May 1983, suspended $275.00 per month of the sentence to forfeiture of all pay and allowances.
8. The U.S. Army Court of Military Review affirmed the finding of guilty and the sentence on 20 July 1983.
9. General Court-Martial Order Number 62, U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, dated 23 January 1984, ordered the sentence to a bad conduct discharge executed. The sentence was adjudged 18 November 1982 as promulgated in General Court-Martial Order Number 2, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky, dated 12 January 1983.
10. The applicant's DD Form 214 shows he was discharged on 30 January 1984 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 3-11, due to court-martial. He received a bad conduct characterization of service.
11. 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.
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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his discharge should be upgraded because it happened 28 years ago.
2. The applicant's record of service prior to his crime of stealing another Soldier's property is marred with repeated incidents of nonjudicial punishment.
3. His trial by court-martial was warranted by the gravity of the offenses charged. The conviction and discharge were effected in accordance with applicable law and regulations and the applicant's discharge appropriately characterizes the misconduct for which he was convicted.
4. The applicant does not argue the appropriateness of the court-martial sentence or deny he committed the offense.
5. The applicant's service clearly did not meet the standards of acceptable conduct for Army personnel. Therefore, he is not entitled to an upgrade of his discharge.
6. 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 were therefore appropriate. As a result, clemency is not warranted in this case.
7. In view of the above, 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 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) AR20100007296
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ABCMR Record of Proceedings (cont) AR20100015821
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