IN THE CASE OF:	  

		BOARD DATE:	  4 May 2011

		DOCKET NUMBER:  AR20100023315 


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 his bad conduct discharge be upgraded to honorable.

2.  The applicant states, in effect, that the entire incident was fabricated and when his company commander tried to verify his whereabouts, everything went bad. 

3.  The applicant did not provide any supporting evidence with his 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 enlisted in the Regular Army on 17 January 1977.  He completed his initial entry training and was awarded military occupational specialty 94B (Food Service Specialist).  
3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* on 7 September 1977, for failure to follow a lawful order of a senior noncommissioned officer (NCO) and failure to go to his appointed place of duty
* on 13 September 1977, for disrespecting a superior commissioned officer and inappropriate wearing of his military uniform 

4.  On 6 April 1978, the applicant was convicted by a special court-martial of: 

* two specifications of willfully disobeying a lawful order of a superior noncommissioned officer on 27 November and 28 November 1977
* two specifications of larceny from other Soldiers on 10 January and 23 January 1978
* one specification of robbery on 7 February 1978

5.  The special court-martial sentence was reduction to private/pay grade E-1, a forfeiture of $265 pay per month for 6 months, confinement to hard labor for 6 months, and a bad conduct discharge.

6.  On 2 May 1978, the convening authority approved the sentence. 

7.  On 31 July 1978, the U.S. Army Court of Military Review affirmed the applicant's findings of guilty and his sentence.

8.  On 19 October 1978, the U.S. Court of Military Appeals denied the applicant's petition to grant a review.

9.  On 28 November 1978, the applicant was discharged accordingly.  His net active service for this period was 1 year, 5 months and 5 days with 160 days of time lost.

10.  References:

	a.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.
	b.  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.

	c.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   d.  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 records are 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  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.  Court-martial convictions and sentences are unique to each offender and are based upon the independent and individualized circumstances of the case.

2.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or significant achievement that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant's request to upgrade his discharge.

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.

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)                                         AR20100023315





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ABCMR Record of Proceedings (cont)                                         AR20100023315



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