IN THE CASE OF: 

		BOARD DATE:	  4 December 2012

		DOCKET NUMBER:  AR20120008376 


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 general, under honorable conditions, or to a lesser discharge.

2.  The applicant states it has been over 21 years since his discharge.  He has submitted a couple requests to the National Personnel Records Center (NPRC) for an upgrade of his discharge, but they informed him they have no authority to upgrade his discharge.  He contends that after 10 years he is entitled to an upgrade.

3.  The applicant provides the following:

* Letters from the NPRC, dated 30 November 2010 and 12 December 2011
* Letter from the Department of Veterans Affairs (VA), dated 11 October 2011

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 24 September 1984, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 
11B (Infantryman).

3.  The applicant completed an overseas tour of duty in the Republic of Korea from December 1985 to December 1986.

4.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on:

* 16 March 1988 for failing to go to his appointed place of duty
* 27 July 1989 for hitting a noncommissioned officer in the face

5.  On 23 May 1989, the applicant was convicted at a general court-martial for violation of:

	a.  Article 86 for an unauthorized absence from 21 to 25 February 1989;

	b.  Article 91 for striking a noncommissioned officer who was in the execution of his office on 20 February 1989; and

	c.  Article 128 for assaulting a Soldier with the means to likely produce death or grievous bodily harm on 26 February 1989.

6.  General Court-Martial Orders Number 31, Headquarters, 4th Infantry Division, Fort Carson, Colorado, dated 1 June 1989, stated that in the case of the applicant's sentence on 23 May 1989, a loss of part of the recording of the proceedings prevented preparation of a verbatim transcript.  This error was prejudicial to the applicant's rights.  Therefore, the findings of guilty and the sentence as stated in the previous paragraph were disapproved.  A rehearing was ordered before a court-martial to be designated.

7.  On 5 June 1989, the applicant was tried by a general court-martial for the violations discussed in paragraph 5 above.  He was found guilty of all charges and sentenced to a bad conduct discharge, a forfeiture of $350.00 pay per month for 6 months, and confinement for 6 months.

8.  On 2 August 1989, the applicant's sentence was approved except for that part of the sentence extending to a bad conduct discharge was to be executed.
9.  General Court-Martial Orders Number 30, Headquarters, U.S. Army Field Artillery Center, Fort Sill, Oklahoma, dated 17 July 1990, announced the applicant's sentence had been affirmed.  Article 71(c) having been complied with, and the sentence to confinement having been completed, that portion of the sentence pertaining to a bad conduct discharge was to be executed.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows  he was discharged from the Regular Army on 3 August 1990 with a bad conduct discharge, as a result of court-martial.

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.  The applicant contends that his bad conduct discharge should be upgraded to general, under honorable conditions or to some other lesser discharge because he is entitled to such an upgrade after 10 years.

2.  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 final discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.  The simple passage of time does not provide justification for upgrading a discharge.

4.  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 the applicant's misconduct, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the above, the applicant’s request should be denied.


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)                                         AR20120008376





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ABCMR Record of Proceedings (cont)                                         AR20120008376



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