IN THE CASE OF:
BOARD DATE: 22 February 2011
DOCKET NUMBER: AR20100016409
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 discharge under other than honorable conditions.
2. He states he made bad decisions when he was younger. He is seeking a discharge upgrade so that he may obtain medical assistance from the Department of Veterans Affairs. Currently, he is having problems with his knee, which requires surgery, and problems with his lower back from a surgery. He states he has matured and asks forgiveness for his actions 21 years ago.
3. He provides no additional evidence in support of this case.
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. He enlisted in the Regular Army on 9 November 1984. He successfully completed basic and advanced individual training and was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist).
3. On 28 October 1987, he was convicted in accordance with his pleas by a general court-martial of conspiracy to commit a robbery, committing a robbery with a firearm, and wrongfully possessing a firearm. His approved sentence consisted of reduction to E-1, forfeiture of all pay and allowances, confinement for 2 years, and a bad conduct discharge.
4. On 25 May 1988, the U.S. Army Court of Military Review considered his appeal and found that the findings and sentence were correct in law and fact and affirmed the findings and sentence.
5. U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 787, dated 25 September 1989, directed that his bad conduct discharge be executed.
6. On 5 October 1989, he was separated from the Army with a bad conduct discharge under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations) as a result of conviction by court-martial. He completed 3 years, 4 months, and 27 days of creditable active service with 545 days of lost time due to confinement.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-7c provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be used for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial.
8. 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 by a court-martial convened under the UCMJ. 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 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 law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.
2. By law, the ABCMR may not disturb the finality of a court-martial. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.
3. The applicant's entire record of service was considered in this case. Given the seriousness of the offenses for which he was convicted, there is insufficient basis to warrant the relief requested.
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) AR20100016409
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ABCMR Record of Proceedings (cont) AR20100016409
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