IN THE CASE OF:	 

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100028289 


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 upgrade of his bad conduct discharge (BCD) to a general discharge.

2.  The applicant states it has been over 20 years since he was court-martialed and he should be considered for an upgrade of his BCD.  Additionally, he would like information on the two others who were court-martialed for the same offenses.  His testimony was needed in their cases.  If their discharges were upgraded he wants to be completely exonerated.   
 
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.  The applicant enlisted in the Regular Army on 26 July 1976.   He completed training and was awarded military occupational specialty (MOS) 95B (Military Policeman).  He was advanced to pay grade E-4 on 30 January 1978, and he reenlisted on 26 January 1979.

3.  At a general court-martial on 24 December 1981, he pled guilty to and was convicted of conspiring with two others to break into the Clothing Sales Store at Fort Carson, CO, breaking into the store, and of stealing several items, military property of the United States, with a total value of $520.81.  He was sentenced to a bad conduct discharge (BCD), confinement at hard labor for 2 months, forfeiture of $300.00 per month for 2 months, and reduction to PV1/E-1.

4.  The sentence was approved and the case forwarded to the U.S. Army Court of Military Review which affirmed the findings of guilty and the sentence on
26 February 1982.  

5.  General Court-Martial Order Number 43, issued by Headquarters, 4th Infantry Division and Fort Carson, dated 15 June 1982, announced that the applicant's sentence was affirmed and that the discharge was to be executed.  

6.  On 2 July 1982, the applicant was discharged with a BCD. 

7.  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.

8.  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.  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.
2.  This Board considers the evidence in an individual's record and that submitted to support a request.  It is not an investigative body.

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 were therefore 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 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)                                         AR20100028289



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