BOARD DATE:	 15 May 2012 

		DOCKET NUMBER:  AR20110021865 


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 an upgrade of his bad conduct discharge.

2.  The applicant states:

* He was not guilty of the charges listed on his court-martial
* His commander wanted him convicted to make an example out of him
* He never saw his alleged victims
* He was clinically dead for 5 minutes

3.  The applicant did not provide any 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 U.S. Army Reserve (USAR) on 18 May 1984.  He subsequently entered active duty for training (ADT) on 4 September 1984, completed training, and awarded military occupational specialty 12C (Bridge Specialist).  He was honorably released from ADT on 7 December 1984 and he was reverted to his USAR unit.

3.  On 19 June 1985, he was honorably discharged from the USAR and he enlisted in the Regular Army on 20 June 1985.  He was assigned to B Company, 1st Battalion, Training Support Brigade, Fort Eustis, VA.

4.  On 21 May 1986, he was convicted by a general court-martial of two specifications of failing to go at the time prescribed to his appointed place of duty and two specifications of stealing U.S. currency from a female Soldier and a male Marine.  He was sentenced to forfeiture of all pay and allowances, confinement for 3 years, and a bad conduct discharge.

5.  On 8 August 1986, the convening authority approved the sentence and, except for the bad conduct discharge, ordered it executed.  The record of trial was forwarded to the Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

6.  On 29 January 1987, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

7.  General Court-Martial Order Number 335, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 21 October 1987, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed.

8.  On 20 November 1987, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-11, as a result of court-martial with a bad conduct discharge.  He completed 9 months and 13 days of creditable active service during this period and 3 months and 4 days of prior active service, for a total of 1 year and 17 days of total active service.  He also had 601 days of time lost during the period 3 April 1986 through 20 November 1987.

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 was convicted by a general court-martial that was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

3.  The ABCMR does not reexamine issues of guilt or innocence under a court-martial.  This is the convening authority's and appellate court's function and it cannot be upset by the ABCMR.  Furthermore, the applicant's case has already been adjudicated through the Army's legal system and the applicant's contention that he was innocent and/or that his commander wanted to make an example out of him issues were addressed or could have been addressed during the court-martial and/or appellate process.  Only after all required post-trial and appellate reviews were completed did the convening authority order the applicant's bad conduct discharge sentence executed.

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.

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)                                         AR20110021865



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ABCMR Record of Proceedings (cont)                                         AR20110021865



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