IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110012426 


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 that his bad conduct discharge be upgraded to general under honorable conditions.

2.  The applicant states he was charged with a crime he had nothing to do with and the witnesses at the trial provided testimony he knew nothing about it.  He contends he was unaware that a crime was about to be committed by fellow Soldiers.

3.  The applicant provides two third-party statements.  

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 20 May 1980 and upon completion of initial entry training was awarded military occupational specialty 31M (Multichannel Communications Equipment Operator).

3.  He accepted nonjudicial punishment on 10 March 1980 for failing to go at the time prescribed to his appointed place of duty.

4.  On 13 January 1983, he was found guilty, contrary to his pleas, by a special court-martial of attempting to steal a ring and other jewelry of a value of over $100.00 by throwing bricks through a jewelry store and for willfully destroying the windows of a jewelry store of a value of about $500.00.

5.  He was sentenced to be reduced to the grade of private/E-1, forfeiture of $300.00 per month for three months, confinement at hard labor for three months, and to be discharged from the service with a bad conduct discharge.  The sentenced was approved on 28 March 1983.  

6.  On 22 January 1985, the U.S. Army Court of Military Review directed the action of the convening authority, dated 28 March 1983, be set aside.  The record of trial was returned to The Judge Advocate General for a new review and action by a different convening authority.  

7.  On 13 August 1985, the action taken by the convening authority, dated 
28 March 1983, having been set aside on 22 January 1985, another review pursuant to the Uniform Code of Military Justice was completed.  The sentence was approved but the execution of confinement in excess of 61 days as deferred on 15 March 1983 was suspended until 12 February 1986, at which time, unless the suspension was sooner vacated, the suspension would be remitted without further action.

8.  On 7 May 1986, the sentence having been affirmed and the provisions of Article 71c having been complied with, the sentence was ordered executed.

9.  Accordingly, he was discharged on 30 May 1986 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of court-martial with a bad conduct discharge.

10.  He provided two third-party statements that attest to his personal and professional character.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

12.  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.  

13.  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 an upgrade of his discharge has been carefully considered.

2.  He contends that he had nothing to do with the crime committed and that he was unaware that a crime was about to be committed by fellow Soldiers.  However, there is no evidence to support this contention, and it should have been raised and adjudicated in the court-martial and appellate process.

3.  The trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which he was convicted.

4.  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 seriousness of his criminal offenses and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  

5.  Based on his misconduct, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general, under honorable conditions discharge.

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)                                         AR20110012426



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ABCMR Record of Proceedings (cont)                                         AR20110012426



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