IN THE CASE OF:	  

		BOARD DATE:  10 May 2012

		DOCKET NUMBER:  AR20110023043 


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 reconsideration of his earlier request for an upgrade of his bad conduct discharge.

2.  The applicant states that the character of his service should be considered when determining his upgrade and not his childhood indiscretion that happened 30 years ago.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) Docket Number AC87-06907 on 10 June 1988.

2.  The applicant did not provide any new evidence; however, he provides a new argument which was not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and warrants consideration by the Board as an exception to policy.

3.  The applicant's records show he enlisted in the Regular Army on 25 June 1980 and held military occupational specialty 16J (Defense Acquisition Radar Crewman).

4.  He served in Korea from 8 December 1980 to on or about 7 December 1981.  He attained the rank/grade of private/E-2.  He was assigned to the 1st Battalion, 2nd Air Defense Artillery, and the 2nd Battalion, 71st Air Defense Artillery.

5.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on:

* 1 April 1981 for willfully disobeying a lawful order
* 27 May 1981 for failing to go at the time prescribed to his appointed place of duty and being disrespectful toward a noncommissioned officer
* 9 June 1981 for breaking restriction

6.  On 3 February 1982, he was convicted by a special court-martial of:

* one specification of attempting to impersonate an Army Criminal Investigation Division Agent and informing military police he was an undercover agent attempting to buy codeine
* one specification of conspiring with a Korean national to purchase various duty-free items and receiving money in exchange of his services
* one specification of wrongfully transferring duty-free goods to a person not authorized duty-free import privileges in exchange for money

7.  The court sentenced him to a reduction to the lowest enlisted grade, a forfeiture of $367.00 pay per month for 6 months, confinement at hard labor for 4 months, and a bad conduct discharge.  The convening authority approved the sentence on 25 March 1982.  The record of trial was forwarded to the Judge Advocate General of the Army for appellate review.

8.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

9.  Headquarters, 7th Infantry Division and Fort Ord, Fort Ord, CA, Special Court-Martial Order Number 7, dated 14 January 1983, shows after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

10.  He was discharged on 28 January 1983.  His DD Form 214 shows he was discharged in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a bad conduct discharge.  This form further shows he completed 2 years, 3 months, and 14 days of creditable military service and he had lost time from 3 February to 24 May 1982.

11.  On 24 July 1987, the Army Discharge Review Board found his discharge proper and equitable.  Accordingly, it denied his petition for an upgrade.

12.  On 8 July 1988, the ABCMR also found his discharge proper and equitable.  Accordingly, it denied his petition for an upgrade.

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.

14.  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.

15.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a special court-martial was warranted by the gravity of the offenses charged.  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 special court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

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 applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

4.  In addition to the court-martial conviction, his record of service included NJP for various infractions during his service.  Based on his record of serious misconduct, 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 the 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AC87-06907, dated 10 June 1988.



      __________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)                                         AR20110023043



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ABCMR Record of Proceedings (cont)                                         AR20110023043



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