IN THE CASE OF: 

		BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120005657 


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).

2.  The applicant states:

* he served his time
* he was under false accusations
* time has passed
* he has grown from a child to grown man
* he was a growing, prospering Soldier before these incidents

3.  The applicant provides no additional documentation.

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 9 February 1988, completed training as an artilleryman, and progressed normally.  He was advanced to specialist four (pay grade E-4) on 1 April 1990.

3.  He served without a discreditable incident of record until October 1990 when he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for carrying two loaded weapons in a privately owned vehicle.

4.  In May 1991, he pled not guilty before a special court-martial to absence without leave (AWOL) from 24 to 26 December 1990, missing movement, and willful disobedience of a noncommissioned officer (NCO).  He was found guilty contrary to his pleas and the sentence included a BCD.

5.  The findings and sentence were approved by the court-martial convening authority and, except for the BCD, ordered executed.

6.  The findings and sentence were affirmed upon review.  On 13 December 1991, Article 71(c), Uniform Code of Military Justice having been complied with, the BCD was ordered executed.

7.  On 31 December 1991, the applicant was discharged accordingly.  He had completed 3 years, 7 months, and 12 days of creditable service and had 100 days of lost time.  His awards consisted of the Army Service Ribbon, Overseas Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar.

8.  The Table of Maximum Punishments in the Manual for Courts-Martial shows that a punitive discharge and two years confinement is authorized for missing movement and 1 year confinement is authorized for willful disobedience of a noncommissioned officer.

9.  There is no indication the applicant applied to the Army Discharge Review Board during that board's 15-year period of eligibility. 

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic policy for the separation of enlisted personnel.  

   a.  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.  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.

11.  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.  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 discharge was lenient compared to the misconduct for which the applicant was convicted.  Therefore, he is not entitled to an honorable or a general discharge.

2.  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)                                         AR20120005657





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ABCMR Record of Proceedings (cont)                                         AR20120005657



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