BOARD DATE:	  19 June 2012

		DOCKET NUMBER:  AR20110022989 


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 (BCD) to an honorable discharge.

2.  He states he served in the Army as a wheeled vehicle repairer and was promoted through the ranks to sergeant/E-5.  His awards and decorations include the Army Service Ribbon, Army Good Conduct Medal, and Overseas Service Ribbon.  While serving in Germany, he and a buddy got into trouble for stealing tires from a car.  He admits that what he did was both wrong and stupid.
As a result, he was convicted, reduced to private/E-1, served 3 months in military confinement, and received a BCD.  He attests that since his discharge he has never been in trouble and he has worked as a mechanic, dock worker, a farm hand, and had his own business.  He is requesting an upgrade of his discharge to improve his employment opportunities and to increase his eligibility for becoming a Shriner.  He concludes that he served his country proudly and would serve again without question.

3.  He provides a:

* self-authored statement
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* character reference letter
* VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative)

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 23 August 1983.  Upon completion of initial entry training he was awarded military occupational specialty 63W (Wheeled Vehicle Repairer).  He was stationed in Germany from 25 April 1984 through 21 May 1987.  The highest rank/grade he attained while serving on active duty was sergeant/E-5.  However, he held the rank/grade of private/E-1 at the time of his separation.

3.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record - Part II) shows he was absent without leave (AWOL) from 17 through 18 March 1984.

4.  Special Court-Martial (SPCM) Order Number 17, published by Headquarters, 21st Support Command on 23 June 1987, shows that the applicant pled guilty and was found guilty of violating Articles 80 and 121 of the Uniform Code for Military Justice (UCMJ) for larceny of three aluminum wheels with tires, of a value in excess of $1,000.00, and attempted larceny of one aluminum wheel with tire of a value in excess or $100.00, on or about 8 March 1987.  On 22 May 1987, the following sentence was adjudged:

* Bad conduct discharge
* Confinement for 4 months
* Forfeiture of $300.00 pay per month for 4 months
* Reduction to private (PV1)/E-1

5.  On 23 June 1987, the sentence was approved and the record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  Pending completion of the appellate review, the applicant was placed in confinement.

6.  On 1 September 1987, the applicant was placed on excess leave for an indefinite period.

7.  On 10 September 1987, the U.S. Army Court of Military Review upheld the findings of guilty and found the sentence correct in law and fact and affirmed the findings of guilty and the sentence.

8.  Orders 33-12, issued by United States Army Correctional Activity, Fort Riley, KS, on 22 February 1988, shows the appropriate authority ordered the BCD to be duly executed.

9.  His DD Form 214 shows he was discharged on 25 February 1988 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3 as the result of court-martial.  This form also shows his character of service as "Bad Conduct."  He was credited with lost time during the following periods:

* 17 through 18 March 1984, AWOL
* 22 May through 22 August 1987, imprisonment
* 23 through 31 August 1987, imprisonment beyond expiration of term of service

10.  His DD Form 214 also shows award or authorization to wear the following:

* Army Service Ribbon
* Army Good Conduct Medal (First Award, 22 August 1986)
* Overseas Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Hand Grenade Bar

11.  The applicant provides a character reference letter rendered by his pastor who attests applicant:

* has been a member of his congregation for nearly 9 years
* is extremely hard working, takes his work seriously, and has great ability to use his hand to perform mechanical work
* is able to relate to middle school and high school kids in a very affectionate way
* take great pride in his family, especially his son and daughter who reflect his hard-working straightforward personality and good moral character
* has done good work on the parson's home
* sets an upright example in the community

12.  References:

	a.  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.

	b.  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.

	c.  Army Regulation 635-200 provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

13.  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 post-service achievements and the fact that he honorably completed his initial term of service and he was awarded the Army Good Conduct Medal for that period of service are duly noted.  However, they are not sufficiently mitigating to absolve his misconduct during the remainder of his service.

2.  The applicant's trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable law and regulations.

3.  The applicant's record is void of any evidence and he has not provided any evidence that shows his bad conduct discharge was subsequently upgraded by the Army.

4.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.

5.  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)                                         AR20110022989





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ABCMR Record of Proceedings (cont)                                         AR20110022989



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