IN THE CASE OF:	  

		BOARD DATE:  27 September 2012

		DOCKET NUMBER:  AR20120006025


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 to general under honorable conditions.

2.  The applicant states:

* the character of service he received reflects only one single incident, not his entire service record
* he was young and made a mistake for which he served 6 months in confinement
* his character of service should have been under honorable conditions (general) based on his age at the time he served and the punishment he received for the offense

3.  The applicant provides no additional evidence.

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 8 June 1977.  He completed training and was awarded military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  On 7 February 1978, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully appropriating two packs of color photograph film from the main Post Exchange, Fort Polk, LA, on or about 11 January 1978.

4.  Before a general court-martial at Fort Polk, he pled guilty to a single specification of a single charge of stealing the property (approximately $800.00 U.S. currency) of a fellow Soldier.  On 26 June 1978, the court found him guilty of the single charge and sentenced him to:

* confinement at hard labor for 6 months
* a fine in the amount of $400.00
* forfeiture of $200.00 per month for 6 months
* discharge from the service with a bad conduct discharge

5.  On 14 September 1978, the convening authority approved the sentence and, except for the bad conduct discharge, ordered it executed.  The applicant was remanded for confinement at the U.S. Disciplinary Barracks, Fort Leavenworth, KS.  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.

6.  Orders 223-3 issued by the U.S. Disciplinary Barracks, Fort Leavenworth, dated 22 November 1978, assigned him to the Personnel Control Facility (PCF), Fort Bragg, NC, effective 5 December 1978.

7.  On 6 December 1978, he arrived at the Fort Bragg PCF.

8.  Orders 14-12 issued by Headquarters, XVIII Airborne Corps and Fort Bragg, dated 19 January 1979, attached him to Headquarters and Headquarters Company (HHC), 426th Signal Battalion, Fort Bragg, effective 24 January 1979, for the purpose of training and evaluation while pending appellate review.

9.  On 2 April 1979, he received NJP under the provisions of Article 15 of the UCMJ for falsifying an official record with the intent to deceive on or about 19 March 1979 and for disrespecting a senior noncommissioned officer on or about 21 March 1979.

10.  On 3 April 1979, he was relieved from attachment to HHC, 426th Signal Battalion, Fort Bragg, and returned to his parent unit, the PCF, Fort Bragg.

11.  On 5 April 1979, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

12.  On 10 April 1979, he received NJP under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) from on or about 6 April 1979 to on or about 9 April 1979.

13.  On 17 April 1979, his unit reported him AWOL.  On 19 April 1979, he was confined at Fort Bragg and returned to duty on 20 April 1979.

14.  On 19 April 1979, court-martial charges were preferred against him for a single specification of a single charge of AWOL from on or about 17 April 1979 to on or about 19 April 1979.

15.  General Court-Martial Order Number 15 issued by Headquarters, XVIII Airborne Corps and Fort Bragg, dated 23 April 1979, ordered the execution of his bad conduct discharge after the completion of all required post-trial and appellate reviews.

16.  On 9 May 1979, he was discharged in accordance with the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11.  Item 9e (Character of Service) of his DD Form 214 shows he was discharged with an under other than honorable conditions character of service.  His DD Form 214 further shows he completed a total of 1 year, 10 months, and 16 days of creditable military service.

17.  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.  

18.  Army Regulation 635-200, paragraph 11-2, in effect at the time, provided that a Soldier would 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.

19.  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 contends his character of service is based on a single incident, not his entire service record.  

2.  It is true he was convicted of a single charge, but that charge was theft from a fellow Soldier.  In addition, neither his pre-court-martial service (during which he was involved in another incident of theft) nor his post-court-martial service was misconduct-free.

3.  The evidence of record shows he was given a bad conduct discharge pursuant to an approved sentence of a general court-martial which was warranted by the gravity of the offenses charged at the time.  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.  The appellate review was completed and the affirmed sentence was ordered duly executed.

4.  He further contends he was young and he made a mistake for which he served a sentence of confinement.  The evidence of record shows he was almost 20 years of age at the time of his offenses; however, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service.

5.  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.  In view of the foregoing, there is insufficient basis to grant 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 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)                                         AR20120006025



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