IN THE CASE OF:	  

		BOARD DATE:	  3 January 2013

		DOCKET NUMBER:  AR20120006482 


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 that his bad conduct discharge be upgraded to honorable.  

2.  The applicant states the Board should take note of all the DA Forms 2823 (Sworn Statement) regarding the alleged damaging of Government property which show he was 60 miles away when the travesty occurred at the 403rd Transportation Company.  He contends that while trying to locate his records at Fort Bragg, NC, he found out interesting information from the outprocessing center.  He was told that his former command did not out-process him and did not follow Army regulations which show that the Army was and is negligent in their actions.  

3.  He further contends that it would be in the best interest of both the Army and the Government to grant him an upgrade of his discharge to honorable because he can and will sue them in court which will cost the Government thousands of dollars.  

4.  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 11 May 1989.  

3.  He accepted nonjudicial punishment on 11 June 1991 for failing to go at the time prescribed to his appointed place of duty and for disobeying a lawful order from a noncommissioned officer.  He also accepted nonjudicial punishment on 
27 June 1991 for breaking restriction.  

4.  On 7 February 1992, he was found guilty by a special court martial of:

	a.  being absent from his unit without authority from 7 October to 10 October 1991;

	b.  being absent from his unit without authority from 24 October to 
1 November 1991;

	c.  willfully disobeying a lawful command from his superior commissioned officer;

	d.  being disrespectful in language towards his superior commissioned officer; and

	e.  assaulting a noncommissioned officer in the execution of his office by raising a clenched fist at him.

5.  He was sentenced to reduction to the grade of E-1, a bad conduct discharge, confinement for four months, and forfeiture of $400.00 for four months.  

6.  On 9 June 1992, only so much of the sentence as provided for a bad conduct discharge, confinement for 100 days, forfeiture of $400.00 for three months, and reduction to E-1 was approved and, except for the part of the sentence extending to a bad conduct discharge was ordered executed.  

7.  On 22 February 1993, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  On 14 October 1993, the sentence having been affirmed and the provisions of Article 71c having been complied with, the bad conduct discharge was ordered to be executed.

9.  Accordingly, he was discharged on 14 October 1993 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial with a bad conduct discharge.

10.  The applicant made reference to DA Forms 2823 regarding the damaging of Government property; however, the forms were not located in the available records.  

11.  Army Regulation 635-200 sets forth the basic authority 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.

   c.  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.

12.  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's request for an upgrade of his bad conduct discharge has been carefully considered.

2.  The trial by 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 final discharge appropriately characterized the misconduct for which he was convicted.

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 seriousness of his criminal offenses and absent sufficient mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

4.  His record of indiscipline includes nonjudicial punishment on two occasions and a special court-martial conviction.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

5.  In view of the foregoing, there is no basis to grant 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)                                         AR20120006482



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ABCMR Record of Proceedings (cont)                                         AR20120006482



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