BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110022700 


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 general, under honorable conditions.

2.  The applicant states he pleaded guilty for which the convening authority agreed to grant him clemency by giving him a general discharge.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and Special Court-Martial Order Number 132, 24th Infantry Division, dated 10 December 1982.

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 1 November 1977, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialties 11B (Infantryman).

3.  On 1 October 1979, the applicant was advanced to specialist four, pay 
grade E-4.  On 1 May 1980, he reenlisted for a period of 6 years.

4. A review of the applicant's military records show the following adverse actions:

	a.  He accepted nonjudicial punishment (NJP) on 16 December 1980; 
23 February 1981; and 23 March 1981, all for failing to go to his appointed place of duty.

	b.  He was issued a bar to reenlistment on 6 July 1981 based on his NJPs and eleven counseling statements for actions that included being late for formations, refusing to go on detail, failing to get a haircut, negative attitude, disrespect to a noncommissioned officer, reporting in the wrong uniform, and for being absent for an entire day.

	c.  He accepted NJP on 10 July and 25 September 1981 for failing to go to his appointed place of duty.

5.  Special Court-Martial Order Number 85, Headquarters, 24th Infantry Division, dated 14 July 1982 shows:

	a.  The applicant was convicted of violating:

* Article 134 (two specifications) under the Uniform Code of Military Justice (UCMJ) for wrongful possession of marijuana
* Article 86 (two specifications) under the UCMJ for being absent without leave (AWOL)

	b  The sentence, adjudged on 13 May 1982, included:

* bad conduct discharge
* forfeiture of $200.00 pay per month for 4 months
* confinement at hard labor for 4 months 
* reduction to pay grade E-1

	c.  The convening authority approved the sentence except for that portion adjudging confinement at hard labor in excess of 3 months and forfeiture in excess of $150.00 pay per month for 4 months was suspended until 14 January 1983, at which time the suspended portion of the sentence was to be remitted unless the suspension had been sooner vacated.

6.  On 31 August 1982, the U.S. Army Court of Military Review (USACMR) found the approved findings of guilty and the sentence correct in law and fact.  Accordingly, the USACMR, on the basis of the entire record, affirmed the findings of guilty and the sentence.

7.  General Court-Martial Order Number 132, 24th Infantry division, dated 
10 December 1982, affirmed the sentence as approved above.  Article 71(c) having been complied with, the sentence was to be executed.

8.  The applicant's DD Form 214, shows that he was discharged from the Regular Army on 10 December 1982 under the provisions of Army Regulation 635-200, chapter 3, due to court-martial.  He received a bad conduct characterization of service.

9.  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 that his bad conduct discharge should be upgraded to honorable because the convening authority agreed to grant him clemency by giving him a general discharge.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the final discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant has not provided any documentary evidence to support his contention that the convening authority agreed to grant him clemency or to change the characterization of his discharge to under honorable conditions.  The evidence does show that the convening authority lessened the sentence by reducing the length of his confinement and the amount of his forfeiture.

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 seriousness of the applicant's criminal behavior, 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 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)                                         AR20110022700





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ABCMR Record of Proceedings (cont)                                         AR20110022700



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