IN THE CASE OF: 

		BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20120007976 


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.  The applicant states he was court-martialed based on hearsay and without any evidence.  He is innocent of all charges that occurred over 20 years ago. 

3.  The applicant did not provide any 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's records show he enlisted in the Regular Army on 16 September 1987 and held military occupational specialty 16S (Man Portable Air Defense (MANPADS) or Pedestal/Mounted Stinger (PMS) Crewmember). 

3.  He served in Germany from on or about 5 February 1988 to on or about 23 August 1988.  He was awarded or authorized the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with Rifle bar (M-16). 

4.  On 12 January 1989, he was convicted by a general court-martial of:

* Charge I, one specification of attempting to steal some amount of money from an individual by means of force, on 27 August 1988
* Charge II, one specification of conspiring with another Soldier to commit larceny and robbery on 27 August 1988
* Charge III, one specification of theft, on 27 August 1988
* Charge IV, one specification of attempting to steal some amount of money from an individual by means of force, on 27 August 1988

The court sentenced him to a bad conduct discharge, a forfeiture of all pay and allowances, and confinement for 24 months. 

5.  On 15 April 1989, the convening authority approved the sentence, and except for the bad conduct discharge, he ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  On 17 December 1968, the U.S. Army Court of Military Review affirmed the approved findings of guilty and a modified sentence.  The Court noted an error with the original sentence as pertained to the date of approval of the sentence on page 2, from 14 April 1988 to 14 April 1989.  

7.  Headquarters, U.S. Army Correctional Brigade, Fort Riley, KS, General Court-Martial Order Number 533, dated 6 September 1990, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

8.  He was discharged on 14 September 1990.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of court-martial in accordance with Army Regulation 635-200 (Personnel Separations) with a bad conduct discharge.  This form further shows he completed a total of 1 year, 5 months, and 1 day of creditable military service and he had lost time from 12 January 1989 to 2 August 1990.

9.  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.

10.  Army Regulation 635-200, 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.

11.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a general 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 discharge appropriately characterizes the misconduct for which he was convicted.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed modified sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

3.  His contention that he is innocent and that he was court-martialed based on hearsay is noted.  However, in the absence of evidence to the contrary, it is presumed the applicant raised this issue during his court-martial and it is also presumed the Court addressed it as a point of contention.  The court-martial or the appellate process would have been the right forums to raise any related or extenuating issues. 

4.  His service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable discharge or a general discharge is not warranted in this case.  He is not entitled to the 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)                                         AR20120007976





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ABCMR Record of Proceedings (cont)                                         AR20120007976



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