IN THE CASE OF:	  

		BOARD DATE:	    8 February 2011

		DOCKET NUMBER:  AR20100019308 


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 an upgrade of his bad conduct discharge (BCD) to an honorable discharge (HD).

2.  The applicant states he was discharged for pawning something that was not his.  He was wrongfully convicted for selling a stolen television and using his identification to pawn it.  Two other individuals took the television.  He did not know it was stolen.  The two individuals asked him for a ride to pawn their television.  When they arrived at the pawn shop, neither individual had identification.  He has a family and needs to have his discharge upgraded so that he will be able to get a better job.

3.  The applicant provides no documentation in support of his request.

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 8 July 1982.  After completing initial entry training he was awarded military occupational specialty 76Y (Unit Supply Specialist).  

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* being absent without leave (AWOL) and leaving post without a pass on 13 February 1983  
* making an official statement with the intent to deceive on 1 March 1985 
* falsely pretending to make an official government phone call with the intent to defraud on 3 February 1985 and by doing so wrongfully obtaining 41 minutes of phone services from the U.S. Government

4.  A DA Form 2-1 (Personnel Qualification Record) shows in item 4 (Assignment Considerations) he was not recommended for further service on 13 April 1984.  The bar to reenlistment was reviewed and not recommended for removal on 11 October 1984 and again on 17 April 1985.  

5.  Special Court-Martial Order Number 52, issued by Headquarters, Fort Bragg, on 14 June 1985, shows he pleaded guilty to one specification of violating Article 78, UCMJ, for being an accessory after the fact on 27 December 1984.  He was sentenced to a BCD, a forfeiture of $400 pay for 4 months, confinement at hard labor for 2 months, and reduction to the pay grade of private/E-1.  The sentence was approved with the forfeiture reduced to $382 pay for 4 months.  The U.S. Army Court of Military Review affirmed the findings and sentence on 30 August 1985.

6.  Special Court-Martial Order Number 28, issued by Headquarters, Fort Bragg, on 17 March 1986, shows the sentence was affirmed and the BCD was ordered to be executed.  On 24 April 1986, he was discharged accordingly.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable or bad conduct) pursuant only to an approved sentence of a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

8.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

9.  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.

10.  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 evidence of record does not support granting the applicant clemency.

2.  He was charged with being an accessory after the fact, which warranted trial by court-martial.  He pleaded guilty to that charge.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  In view of the foregoing, there is no basis for granting his requested relief.

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)                                         AR20100019308



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ABCMR Record of Proceedings (cont)                                         AR20100019308



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