IN THE CASE OF:	  

		BOARD DATE:	      17 April 2012

		DOCKET NUMBER:  AR20110020525 


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 honorable.  

2.  The applicant states, in effect, that his focus upon enlisting was to serve his country first.  He contends that his post-military life has been one of production, education, and success.  He owns and operates a tree and landscape business.  He states he did not contest the court-martial action and he has not made an appeal in the past 35 years because he does not want to make any excuses.  

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), copies of his driver's license, Wage and Tax Statement, a picture of an individual in a military uniform (presumably the applicant), and a list of client and bank references.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not provide additional evidence or argument.

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.  On 28 January 1980, the applicant enlisted in the Regular Army and was awarded military occupational specialty (MOS) 95B (Military Police) upon completion of initial entry training.  He was reclassified into MOS 64C (Motor Transport Operator) due to an administrative disqualification for MOS 95B.

3.  He accepted nonjudicial punishment (NJP) on 12 May 1981 for disobeying a lawful order from his superior noncommissioned officer and on 17 June 1981 for striking another Soldier with his fist.

4.  On 22 February 1982, he was found guilty, in accordance with his pleas, by a special court-martial of the following offenses:

	a.  stealing a general mechanic's tool kit, of some value, but not more than $50.00, the property of the United States Government; 

	b.  unlawfully entering a building, the property of the United States Government, with intent to commit larceny;

	c.  wrongfully having in his possession .5 grams, more or less, of marijuana;

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

	e.  being absent without leave from his unit during the period 16-19 November without authority; and 

	f.  making a false statement under lawful oath;

5.  He was sentenced to reduction to the rank of private/E-1, a forfeiture of $367.00 pay for 3 months, confinement at hard labor for 3 months, and a discharge from the service with a bad conduct discharge.  On 13 May 1982, the sentence was approved.

6.  On 3 November 1982, the sentence having been affirmed and the provisions of Article 71c having been complied with, the bad conduct discharge was ordered to be executed.

7.  Accordingly, he was discharged on 9 November 1982 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of court-martial with a bad conduct discharge.

8.  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.

9.  Army Regulation 635-200, paragraph 3-7a, provides 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.

10.  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.  

11.  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 bad conduct discharge has been carefully considered.

2.  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.

3.  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 sufficient mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

4.  His post-military accomplishments were noted; however, his record of indiscipline includes NJP on two occasions and a court-martial conviction for multiple offenses.  Based on his record of 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 either an honorable or a general discharge.  

5.  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)                                         AR20110020525



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ABCMR Record of Proceedings (cont)                                         AR20110020525



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