IN THE CASE OF:	  

		BOARD DATE:  26 April 2012

		DOCKET NUMBER:  AR20110021128 


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:

	a.  he was wrongfully accused and charged with something (theft) he did not do.  He only took back what was his (a cross bow) which was stolen from him by the defendant.

	b.  his discharge was inequitable because it was based on a lie and on one incident in his over 3 years of active duty.  The defendant never had to appear at the court-martial.  His former first sergeant (a Congressional Medal of Honor recipient) spoke on his behalf.

	c.  an item of his personal property was stolen by the defendant and he removed $48.00 from the thief's wallet and gave him back his wallet.  He was reported to the company commander and arrested.

3.  The applicant provides no documentary 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 21 October 1983 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 11C (indirect fire infantryman).

3.  On 20 December 1985, in accordance with his plea, he was convicted by a special court-martial of stealing $445.00 from a private first class.  He was sentenced to be confined for 3 months, to forfeit $350.00 pay per month for 
3 months, and to be discharged from the service with a bad conduct discharge.  On 14 February 1986, the convening authority approved the sentence.

4.  The decision of the U.S. Army Court of Military Review is not available for review.  However, on 10 December 1986, the convening authority ordered the bad conduct discharge to be executed, indicating the sentence was affirmed.

5.  On 3 March 1987, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial with a bad conduct discharge.  He completed 3 years and 2 months of creditable active service with 73 days of time lost due to confinement.

6.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

7.  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.


8.  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 claims he was wrongfully accused and charged with something (theft) he didn't do.  However, evidence shows he pled guilty to stealing $445.00 from a private first class.

2.  His record of service included one special court-martial conviction for larceny. As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

3.  Trial by court-martial was warranted by the gravity of the offense charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant 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 applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110021128



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ABCMR Record of Proceedings (cont)                                         AR20110021128



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