IN THE CASE OF:	  

		BOARD DATE:  10 January 2012

		DOCKET NUMBER:  AR20110013417 


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 that over the past years living as a productive citizen he realized the mistakes he made as a young adult and he now wants to be recognized as a true Soldier.

3.  The applicant provides a one-page letter explaining his application and copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), birth certificate, and grandmother's death certificate.

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 was born on 26 October 1960 and he enlisted in the Regular Army in Atlanta, Georgia, on 26 September 1978 for a period of 3 years, training as a combat engineer, and assignment to Korea.  He was transferred to Fort Leonard Wood, Missouri, to undergo one-station unit training.

3.  On 12 December 1978, nonjudicial punishment (NJP) was imposed against him for causing a breach of peace by engaging in a fistfight with another Soldier.

4.  On 8 January 1979, he was transferred to Korea for assignment to the 2d Engineer Battalion.

5.  On 11 May 1979, NJP was imposed against the applicant for excessively exceeding his ration control limitations and for the wrongful possession of marijuana.

6.  On 3 July 1979, NJP was imposed against him for being in an off-limits area without a pass.

7.  On 14 October 1979, NJP was imposed against him for two specifications of failing to go to his place of duty.

8.  On 19 December 1979, NJP was imposed against him for breaking restriction.

9.  On 28 December 1979, NJP was imposed against him for being off post without a pass.

10.  On 2 January 1980, NJP was imposed against him for assaulting another Soldier by cutting him on the arm with a knife.

11.  The applicant departed Korea on 4 January 1980 and was transferred to Fort Devens, Massachusetts, for assignment to an engineer company.

12.  On 17 July 1980, NJP was imposed against him for unlawfully striking a female Soldier in the face twice with his hand and participating in a breach of peace.

13.  On 28 October 1980, NJP was imposed against him for violating a lawful regulation by burning incense in his room.

14.  On 28 January 1981, he was convicted by a special court-martial pursuant to his plea of stealing a purse containing currency, a camera, two wallets and a military ID card of another Soldier; stealing a wallet containing currency and a military ID card of another Soldier; stealing a wallet containing currency and ID card belonging to another Soldier by means of force and violence; unlawfully possessing marijuana; and unlawfully carrying a concealed weapon.  He was sentenced to a forfeiture of $334.00 per month for 6 months, confinement at hard labor for 3 months, and a bad conduct discharge after the convening authority reduced the period of confinement from 6 months.

15.  On 30 March 1981, the U.S. Court of Military Review affirmed the approved findings of guilty and the sentence imposed by the convening authority.

16.  On 23 April 1982, he was he was discharged pursuant to a duly-reviewed and affirmed court-martial conviction.

17.  On 10 July 1995 while incarcerated by the Georgia Department of Corrections, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He indicated that at the time he had been in prison for 12 years and he wanted his discharge upgraded so he could provide for his family.  He also stated that military life was the only life good to him and he realizes he made mistakes, but asked that the board be open-minded in granting him an upgrade of his discharge.  After reviewing all of the facts and circumstances of the case, the ADRB found no basis to grant clemency in his case and voted unanimously to deny relief on 20 November 1997.

18.  Army Regulation 635-200 (Personnel Separations), 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.

19.  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.  A 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 discharge appropriately characterizes the misconduct for which he was convicted.  Therefore, the type of discharge directed and the reasons appear to be appropriate considering the available facts of the case.

2.  The applicant's contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses.

3.  Accordingly, his punishment was not disproportionate to the offenses for which he was convicted and he failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.

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 applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

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 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)                                         AR20110013417



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ABCMR Record of Proceedings (cont)                                         AR20110013417



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