IN THE CASE OF: 

		BOARD DATE:  10 April 2012

		DOCKET NUMBER:  AR20110019243 


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 to a general discharge.

2.  The applicant states he was assured by his counsel that a BCD would be automatically upgraded after 6 months to a general discharge or something similar, if he signed a pre-trial agreement and pled guilty to things he was not guilty of.  After the court proceedings, he assumed what the lawyer told him was true until he tried to get a veteran's identification card and he was denied.  If he knew then that his counsel was not truthful with him he would not have signed the agreement.

3.  The applicant provides a copy of this DD Form 214 (Report of Separation from Active Duty).

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 25 August 1976.  He completed training as an indirect fire infantryman and he was assigned to the 4th Infantry Battalion, 20th Infantry, Fort Clayton, Canal Zone (Panama).

3.  He accepted five nonjudicial punishments under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) and he was convicted by one summary court-martial.

4.  A general court-martial convicted him, in accordance with his pleas, of missing movement, being absent without leave (AWOL), and knowingly receiving several items of stolen property valued at approximately $1,280.00.

5.  On 16 June 1978, the applicant was sentenced to confinement for 3 years, forfeiture of all pay and allowances, and a dishonorable discharge.

6.  The General Court-Martial Convening Authority (GCMA) approved only so much of the sentence as provided for a bad conduct discharge, confinement for 
1 month, and forfeiture of all pay and allowances. 

7.  There is no available record of the appellate process.

8.  Article 71(c) of the UCMJ having been complied with, the BCD was ordered executed and the applicant was discharged accordingly on 6 August 1979.  He had completed 1 year, 11 months, and 1 day of creditable active service, with   83 days of time lost.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his BCD should be upgraded because his counsel  told him it would be automatically upgraded.

2.  There is no evidence of record and the applicant did not provide any evidence that confirms he was told his BCD would be automatically upgraded in 6 months. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if it is determined that the characterization of service or the reason for discharge or both were improper or inequitable.

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

4.  In view of the above, the applicant's request should be denied.

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)                                         AR20110008358



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ABCMR Record of Proceedings (cont)                                         AR20110019243



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