IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120001984 


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 his bad conduct discharge (BCD) be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states:

   a.  after serving 8 years with good conduct and obtaining a promotion to sergeant (SGT/E-5), he made a mistake and did not perform his duties as he was trained;

   b.  he voluntarily admitted to his first sergeant what he had done and regretted his mistake;

   c.  he played football, was on the post boxing team, and he was a member of the post German American Athletic League while he was stationed in Germany; and

   d.  subsequent to his military service, he was gainfully employed by Manatee County Florida and the City of Bradenton before he suffered kidney failure.

3.  The applicant provides five certificates.  He also indicates he submitted service performance records and letters of appreciation; however these documents were not included with his application when it was received by the Board.

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’s military record shows he enlisted in the Regular Army (RA) on 27 August 1979.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On 2 November 1983, he was promoted to SGT, which is the highest rank he achieved while serving on active duty.  His DA Form 2-1 (Personnel Qualification Record) shows he earned the following awards and badges:

* Army Good Conduct Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Expert Marksmanship Qualification Badge with M-16 Rifle Bar
* Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar

4.  The applicant’s record confirms that he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two dates for the indicated offenses:  

* 19 February 1985 - for twice failing to go at the time prescribed to his appointed place of duty on 14 January 1985 and wrongfully straggling in the physical training formation on 18 January 1985
* 7 May 1985 - for wrongfully using marijuana on 16 March 1985

5.  On 9 September 1985, pursuant to his pleas, a special court-martial (SPCM) found the applicant guilty of violating the following Articles of the UCMJ:

* Article 121 - Larceny of property valued in excess of $100.00
* 
Article 130 - unlawful entry into a room with the intent to commit wrongful appropriation

6.  The resulting sentence was a reduction to PV1/E-1, two months confinement, and a BCD. 

7.  Headquarters, 9th Infantry Division, SPCM Order Number 49, dated 
31 October 1985, shows the SPCM convening authority approved the sentence and directed that all except the BCD portion be duly executed. 

8.  On 26 March 1987, SPCM Order Number 47, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, directed, Article 71c of the UCMJ having been complied with, that the BCD portion of the sentence be duly executed.  On 8 May 1987, the applicant was discharged accordingly.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his discharge shows he was discharged under the provisions of chapter 3, Army Regulation 635-200, by reason of court-martial and received a BCD.  It also shows at the time of his discharge he completed 7 years, 6 months, and 21 days of creditable active military service and accrued 51 days of time lost due to confinement during the period                 9 September - 29 October 1985.

10.  The applicant provides three course completion certificates, one certificate of achievement, and one certificate of appreciation.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or BCD.  It stipulates that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the BCD portion of the sentence is ordered duly executed.  

12.  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.  

13.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  Under the provisions of 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 his BCD should be upgraded to a GD because, after completing 8 years of service with good conduct, he made a mistake which he regretted.  However, the evidence of record reveals a disciplinary record consisting of two NJP’s under the UCMJ and an SPCM conviction.

2.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.  Given the gravity of the offenses that resulted in his SPCM conviction, the evidence is not sufficient to support clemency.

4.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20120001984





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120001984



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1