BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110005367 


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 he fully accepts the responsibility for his past actions.  He was not thinking rationally and let another Soldier talk him into being involved in a robbery.  He is now the owner and working technician of an appliance repair company.  He has a daughter in the military.  In his work he has entered thousands of homes and there have been no complaints against him.  He is now a productive member of society and asks the Board to overlook his earlier transgression and upgrade his discharge.

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty)
* a Criminal History Background Check by the Police Department, Barnwell, SC
* a letter of support from his Pastor, dated 4 January 2011
* a letter of support from a Captain at the Barnwell Police Department
* a letter of support from a volunteer in his company, dated 23 November 2010
* a letter of support from a local businessman, dated 10 December 2010
* a letter of support from a Sergeant in the Barnwell Police Department
* a letter of support from the Secretary-Treasurer of a local business, dated 22 December 2010


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 14 March 1975.  He completed training and he was awarded military occupational specialty 11B (Light Weapons infantryman).

3.  On 25 May 1976, at a special court-martial, the applicant pled guilty and he was found guilty of:

* Breaking and entering the billets room of another Soldier with the intent to commit larceny (Burglary)
* Stealing U.S. currency and property of two Soldiers of a total value of about $246.00 (Larceny)

4.  The Military Judge sentenced the applicant to a BCD, confinement at hard labor for 6 months, reduction to the grade of E-1, and forfeiture of $240.00 pay per month for 6 months.  No previous convictions were considered.  The convening authority approved only so much of the sentence as provided for
5 months confinement, forfeiture of $240.00 per month for 5 months, reduction to E-1, and a BCD.

5.  The U.S. Court of Military Review affirmed the findings and sentence on an unknown date.

6.  On 16 November 1976, the U.S. Court of Military Appeals denied his petition for review.

7.  Special Court-Martial Order Number 13, issued by Headquarters, U.S. Army Training Center, Fort Dix, NJ, dated 14 February 1977, with the provisions of Article 71(c) having been complied with, ordered the sentence to be duly executed.  The portion of the sentence pertaining to confinement having been served, the sentence to a bad conduct discharge was ordered executed.

8.  On 1 March 1977, the applicant was accordingly discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, pursuant to his sentence by court-martial.  Item 9f (Type of Certificate Issued) of the DD Form 214 he was issued at the time shows he was issued a DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).

9.  On 14 May 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  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.

11.  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.

12.  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.  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.


2.  The applicant’s post-service achievements, as well as his letters of support, have been carefully considered.  However, these achievements do not sufficiently mitigate the criminal acts he committed against fellow Soldiers during his military service.  Therefore, he is not entitled to an upgrade of 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.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

5.  It appears that an administrative error was made in the issuance of the applicant's discharge certificate and his DD Form 214.  It shows he was issued a DD Form 794A wherein he should have been issued a DD Form 259A (Bad Conduct Discharge Certificate) as a result of his special court-martial sentence.  However, it has long been an unwritten policy of the Board that an applicant will not be made worse off than when they applied to the Board.  For this reason, the Board will not take any action to effect the administrative change to correct the type of discharge certificate.  The applicant should be aware that the documents directing the type of discharge he was to receive are properly filed in his official military personnel file.

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)                                         AR20100028131



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ABCMR Record of Proceedings (cont)                                         AR20110005367



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