IN THE CASE OF:	  

		BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20110001518 


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 (BCD) be upgraded to an honorable discharge.

2.  The applicant states he was a victim of circumstances.  He was a passenger in a car that had stolen items in the trunk unbeknown to him.  He was told his BCD would automatically be upgraded to an honorable discharge in 10 years and that has not occurred.  He now needs medical treatment from the Department of Veterans Affairs.

3.  The applicant provides no additional documents.

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's military records show he enlisted in the Regular Army on 18 October 1979 and was awarded the military occupational specialty of subsistence supply specialist.

3.  On 7 April 1980, he accepted nonjudicial punishment (NJP) for possession of marijuana.

4.  On 29 September 1981, he was convicted by a special court-martial of conspiring with another Soldier to commit an offense under the Uniform Code of Military Justice, to wit:  larceny of 116 pounds of meat by moving the meat from its freezer and moving it into a dumpster and then transferring the meat to the trunk of the car of another Soldier.  He was also convicted of stealing 116 pounds of meat, the property of the U.S. Government.  He was sentenced to a reduction from pay grade E-4 to E-1, 116 days of confinement, and forfeiture of $330.00 per month for 6 months.

5.  On 3 February 1983, the applicant was again convicted by a special court-martial of stealing a radio/cassette deck of a value of about $250.00, the property of another Soldier.  He was also convicted of unlawfully entering a room, the property of the U.S. Government, with intent to commit a criminal offense, to wit:  larceny, therein.  He was sentenced to a BCD.

6.  On 29 April 1983, the court-martial finding of guilty and the sentence was affirmed by the U.S. Army Court of Military Review.

7.  On 20 May 1983, the applicant's sentence to a BCD was ordered executed.  Accordingly, the applicant was given a BCD as a result of court-martial on 1 July 1983.

8.  Army Regulation 635-200 (Enlisted Separations) 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.

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.  

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.  Prior to charges being brought against the applicant for the offenses that led to his discharge, he accepted NJP for possession of marijuana and was convicted by a special court-martial of conspiring with another Soldier to steal 116 pounds of meat and of stealing 116 pounds of meat.

2.  His second special court-martial convicted him of unlawfully entering a room and stealing a radio/cassette deck of a value of about $250.00, the property of another Soldier.

3.  While the applicant claims he was innocent of the charges that led to his BCD, he has not provided any evidence or argument that would support his assertions.

4.  The applicant's repeated, serious misconduct did not warrant either an honorable or a general discharge.

5.  The Army does not and never has upgraded discharges automatically based on the passage of time and the Board does not change a properly-issued discharge solely to establish entitlement to benefits from another agency.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110001518



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ABCMR Record of Proceedings (cont)                                         AR20110001518



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