IN THE CASE OF:	  

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110013088 


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 an upgrade of his bad conduct discharge to an honorable discharge.

2.  The applicant states he was young at the time and he made a mistake.  He believes he was a good Soldier.  He regrets what he did; he got involved with the wrong people.  He now needs health care benefits.

3.  The applicant did not provide any 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's records show he was born on 30 October 1958 and enlisted in the Regular Army at nearly 19 years of age on 19 July 1977.  He held military occupational specialty 11B (Infantryman).

3.  He served in Germany from 21 November 1977 to 19 December 1979.  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar and the Expert Marksmanship Qualification Badge with Grenade Bar.

4.  On 20 December 1979, he was convicted by a general court-martial of one specification of committing larceny, one specification of unlawful entry, and one specification of resisting apprehension.  The Court sentenced him to a forfeiture of all pay and allowances, confinement at hard labor for 30 months, a reduction to private/E-1, and a bad conduct discharge.

5.  On 5 February 1980, the convening authority approved so much of the sentence as provided for a forfeiture of $298.00 pay for 11 months, confinement at hard labor for 11 months, reduction to private/E-1, and a bad conduct discharge, and except for the bad conduct discharge, the sentence was ordered executed.  The record of trial was forwarded to the Judge Advocate General of the Army for appellate review.

6.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

7.  On 9 July 1980, the U.S. Court of Appeals for the Armed Forces denied him a review of his case. 

8.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 442, dated 28 July 1980, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

9.  The applicant was discharged from the Army on 22 August 1980 with a bad conduct discharge.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed a total of 2 years, 5 months, and 1 day of creditable military service and he had lost time from 20 December 1979 to 22 August 1980.

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.

11.  Army Regulation 635-200 (Personnel Separations) provides for the following characters of service: 

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  The applicant was nearly 19 years of age at the time of enlistment and nearly 21 years of age at the time he committed his offenses.  There is no evidence his offenses were caused by his age or that he was any less mature than other Soldiers of the same age who successfully completed their military service.

3.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  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.  The fact that he thinks he was young at the time does not negate the fact that he was convicted by a general court-martial or remove his crime.

4.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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)                                         AR20110013088



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013088



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1