BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20110000937 


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, in effect, that his bad conduct discharge be upgraded to honorable.

2.  The applicant states he believes his discharge is unjust.  

	a.  Until his alleged infraction, his military service was flawless.  As a private, he had attended and successfully completed the Pathfinders Course and had received numerous accolades and awards.  He also was a member of the European Karate Championship Team.  

	b.  Unfortunately, he made a mistake by being in the company of individuals who committed the infraction.  He was guilty by association. 

	c.  He was not afforded the opportunity to defend himself.  He was convicted and confined.

	d.  Throughout his incarceration, he thrived.  He earned his general education degree and completed several courses to include the self-referred Rehabilitation Counseling courses.

	e.  He has been and still is a productive citizen. 


3.  The applicant provides copies of two Certificates of Achievement  for completing the requirements for the Pathfinder Professional Badge, a request indicating that he was a member of the European Karate Championship Team, a certificate indicating he had completed the 7th STEP FOUNDATION History and Training at Fort Leavenworth, Kansas, and a certificate indicating that he had completed the United States Disciplinary Barracks (USDB) Restoration Unit training.

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 10 April 1979, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 63B (Power Generator and Wheeled Vehicle Repairman).  

3.  The applicant accepted the following nonjudicial punishments:

	a.  29 May 1980: for being drunk on duty and removing a bottle of liquor from a damaged vehicle and hiding it in the woods for the purpose of hindering the apprehension of another Soldier; and

	b.  29 July 1981: for failure to go to physical training formation. 

4.  On 8 October 1981, at a general court-martial, the applicant was found guilty pursuant to his pleas of:

* Conspiring with other Soldiers to steal stereo equipment valued at about $791.00
* Larceny of stereo equipment valued at about $791.00

5.  The Military Judge sentenced the applicant to:


* reduction to pay grade E-1
* forfeiture of all pay and allowances
* confinement at hard labor for 15 months
* bad conduct discharge

6.  On 3 November 1981, the convening authority approved the sentence.  The forfeitures became due on and after the date of the approval.  The record of trial was forwarded to the Court of Military Review.

7.  Effective 18 December 1981, the Commandant, USDB, Fort Leavenworth, Kansas, suspended $224.00 pay per month of the applicant's sentence to forfeiture of all pay and allowances.

8.  On 4 February 1982, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

9.  General Court-Martial Order Number  357, USDB, Fort Leavenworth, Kansas, dated 26 May 1982, indicates that the sentence, as modified by the Commandant, USDB, had been affirmed pursuant to Article 71c.  The sentence was ordered to be executed.

10.  On 15 June 1982, the applicant was discharged with a bad conduct characterization of service.

11.  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.

12.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.


13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his bad conduct discharge should be upgraded to honorable because he was guilty only by association.  He also contends that he has been and is a productive citizen.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  Based on the applicant's misconduct which includes two prior records of nonjudicial punishment, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also rendered his service unsatisfactory.

4.  The applicant’s in-service training and achievements, as well as his accomplishments while incarcerated, have been considered.  However, these achievements do not sufficiently mitigate his criminal acts committed during his military service.

5.  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.

6.  In view of the above, there is no basis for granting the applicant's 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)                                         AR20110000937





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ABCMR Record of Proceedings (cont)                                         AR20110000937



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