IN THE CASE OF:	  

		BOARD DATE:  11 September 2012

		DOCKET NUMBER:  AR20120003686


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.  He states he was falsely accused of stealing property from his barracks.

3.  He provides no additional evidence in support of his request.

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 9 February 1979, the applicant enlisted in the Regular Army.  His record shows he held military occupational specialties (MOS) 12E (Atomic Demolition Munitions Specialist) and 12F (Engineer Tracked Vehicle Crewman).  Upon the completion of his initial entry training he was assigned to 3rd Engineer Battalion, 24th Infantry Division (Mechanized), Fort Stewart, GA.  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  On 17 February 1982, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing marijuana on 22 January 1982.

4.  On 24 March 1982, he received NJP under the provisions of Article 15, UCMJ, for twice failing to go at the prescribed times to his appointed place of duty on 22 February 1982.

5.  On 13 April 1982, his duty status was changed from present for duty to confined in the hands of civil authorities.  On 15 April 1982, upon his release from civilian confinement, his duty status changed to present for duty.

6.  On 21 June 1982, the applicant's immediate commander recommended his bar to reenlistment based on his receipt of NJP for possession of marijuana, his demonstrated total inability to be a productive Soldier, his laziness, and his required constant supervision to do a marginal job.  The applicant acknowledged he was furnished a copy of his commander's recommendation and that he was counseled and advised of the basis for the proposed action.  He elected not to submit a statement in his own behalf.

7.  On 25 June 1982, the approval authority approved the applicant's Bar to Reenlistment Certificate.

8.  On 23 July 1982, he received NJP under the provisions of Article 15, UCMJ, for failing to go at the prescribed time to his appointed place of duty on 8 July 1982.

9.  On 1 September 1982, his duty status was changed from present for duty to absent without leave (AWOL).  On 29 September 1982, upon his return to military control, his duty status again changed to present for duty.

10.  On 2 November 1982, his duty status was changed from present for duty to AWOL.  On 3 November 1982, his duty status again changed to present for duty.

11.  Before a special court-martial at Hunter Army Airfield, Fort Stewart, GA, he pled guilty to:

* a single specification of Charge 1 – violating UCMJ, Article 86 – absenting himself from his unit from on or about 1 September 1982 to on or about  28 September 1982
* a single specification of Charge 2 – violating UCMJ, Article 121 – wrongful appropriation (theft) of property belonging to a fellow Soldier on or about  3 August 1982

12.  On 19 November 1982, the court found him guilty of all specifications and Charges and sentenced him to reduction to the rank/grade of private (PV1)/E-1, forfeiture of $200.00 pay per month for 2 months, confinement at hard labor for
2 months, and to be discharged from the Army with a bad conduct discharge.

13.  On 23 November 1982, he was remanded for confinement at the installation detention facility, Fort Gordon, GA.  His duty status was changed from present for duty to confined in the hands of military authorities, for the purpose of serving his court-martial punishment.

14.  On 16 December 1982, the convening authority approved his 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.

15.  On 7 January 1983, upon his release from military confinement, his duty status again changed to present for duty.

16.  On 27 January 1983, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in his court-martial.  The U.S. Court of Military Appeals denied his petition for review.

17.  Special Court-Martial Order Number 36, issued by Headquarters,
24th Infantry Division (Mechanized), Fort Stewart, dated 2 June 1983, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge, as ordered by Special Court-Martial Order Number 142, issued by Headquarters, 24th Infantry Division (Mechanized), Fort Stewart, GA, dated
16 December 1982, was ordered duly executed.

18.  On 2 June 1983, the applicant was discharged in accordance with the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial with a bad conduct character of service.  He completed 4 years, 1 month, and 8 days of creditable active service with 76 days of time lost due to AWOL and confinement.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

	b.  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.

	c.  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.  

	d.  Paragraph 3-10 provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

20.  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 given a bad conduct discharge pursuant to an approved sentence by a special court-martial, which was warranted by the gravity of the offenses charged at the time.  He pled to the charge of theft.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

2.  All requirements of law and regulation were met and his rights were fully protected.  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.  In view of the foregoing, there is insufficient evidentiary 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20120003686



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