BOARD DATE:	  13 September 2011

		DOCKET NUMBER:  AR20110003083


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).

2.  The applicant states, in effect, that his discharge should be upgraded because:

* his commander told him he could leave, since he was assigned to a retraining brigade, did not want to stay in the Army, and was not permitted to return to his original military occupational specialty (MOS)
* he was told to turn his gear in and go; he could leave, so he did
* he followed his last command and that should not be held against him

3.  The applicant provides no additional evidence.

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 3 May 1979.  He completed training and was awarded MOS 42D (Dental Lab Specialist).  

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on four occasions:  

* on 1 August 1979, for two specifications of failure to obey a lawful order, on 29 July 1979
* on 16 January 1980, for being absent without leave (AWOL) from on or about 8 December 1979 to on or about 11 January 1980
* on 24 February 1981, for being AWOL from on or about 11 February 1981 to on or about 19 February 1981
* on 13 March 1981, for dereliction of duty on 7 March 1981  

4.  At a general court-martial at Fort Gordon, GA, he was charged with a single charge of larceny, to which he pled guilty.

5.  On 11 August 1980, the Court found him guilty of the specification of the charge and the charge.  The Court sentenced him to confinement at hard labor for 6 months, forfeiture of $225.00 pay per month for 6 months, reduction to private (PV1)/E-1, and a BCD.

6.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

7.  On an unknown date in 1980-81, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

8.  General Court-Martial Order Number 15, issued by Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, dated 17 March 1981 shows that after completion of all required post-trial and appellate reviews, the convening authority ordered his BCD duly executed.

9.  On 3 April 1981, he was discharged in accordance with the directives of General Court-Martial Order Number 15.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of court-martial, with a BCD character of service.  This form further shows he completed 1 year, 4 months, and 25 days of creditable active service.  The highest rank/grade he attained while serving on active duty was private (PV2)/E2.

10.  Army Regulation 635-200, paragraph 3-10, provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his BCD has been carefully considered; however, there is insufficient evidence to support his request.  

2.  He was given a BCD pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offense charged at the time, which was larceny, not AWOL.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

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.

4.  In view of the foregoing, there is insufficient basis to grant 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20110003083



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