IN THE CASE OF:	  

		BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110013135 


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 a general discharge.

2.  The applicant states, in effect, he believes the record is unjust because he had no prior disciplinary actions and he had not behaved contrary to rules and regulations.  He was young, age 20, and he made a bad decision that has haunted him to this day.  He contends that his punishment was too harsh because it was not his desire to be discharged and due to his characterization of service he is being denied medical benefits which he earned prior to discharge.  

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 31 July 1984 and upon completion of initial entry training was awarded military occupational specialty 62J (Construction Equipment Operator).

3.  On 18 February 1986, he accepted nonjudicial punishment for failing to go at the time prescribed to his appointed place of duty.  

4.  He was issued a Letter of Reprimand on 10 March 1986 for testing positive for marijuana in a urine sample provided on 9 January 1986.

5.  An endorsement from his commander, dated 27 March 1986, indicates he was apprehended and charged with possession of marijuana on 18 February 1986.

6.  On 19 June 1986, he was convicted, in accordance with his pleas, by a special court-martial of the following offenses:

	a.  failing to go at the time prescribed to his appointed place of duty;

	b.  disobeying a noncommissioned officer (NCO);

	c.  being disrespectful towards an NCO;

	d.  wrongful possession of 7.86 grams of marijuana;

	e.  larceny of a sport coat and a suit of a value of approximately $400.00; and

	f.  unlawful entry into a room while at Fort Stewart, GA.

7.  He was sentenced to be discharged from the service with a bad conduct discharge, a forfeiture of $426.00 pay for 5 months, confinement for 157 days, and reduction to the rank of private/E-1.

8.  On 5 October 1986, only so much of the sentence as provided for reduction to pay grade E-1, a forfeiture of $426.00 pay for 5 months, confinement for 
105 days, and to be discharged from the service with a bad conduct discharge was approved.

9.  On 11 June 1987, the sentence having been affirmed and the provisions of Article 71c having been complied with, the bad conduct discharge was ordered executed.

10.  Accordingly, he was discharged on 11 June 1987 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of court-martial with a bad conduct discharge.

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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

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 was young, age 20, and he made a bad decision; however, he completed initial entry training.  This shows he was mature enough to satisfactorily serve.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their terms of military service.

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 were therefore 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 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)                                         AR20110013135



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013135



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1