IN THE CASE OF:	  

		BOARD DATE:	  4 January 2013

		DOCKET NUMBER:  AR20120011226 


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.

2.  The applicant states he feels as though he served in the U.S. Army with honor and discipline until his discharge for one idiotic night of drunkenness.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 military records show he enlisted in the Regular Army on 8 September 1978.  He completed training and was awarded the military occupational specialty of 13E (Cannon Fire Direction Specialist).  The highest rank/grade he held was private first class/E-3.

3.  He accepted nonjudicial punishment on 22 January 1980 for failure to go at the time prescribed to his appointed place of duty.

4.  Special Court-Martial Order Number 53, Headquarters, VII Corps, shows that on 1 May 1980, pursuant to his pleas, he was convicted of:

* willfully breaking the glass in a door, military property
* willfully destroying a door by tearing it from its hinges, military property
* stealing eleven magazines and two calendars, military property
* stealing a military issue sleeping bag, one pair of field trousers, one parka liner, and one shirt, military property  
* unlawfully entering the Stars and Stripes Bookstore
* unlawfully entering a boiler room, the property of IL

The court sentenced him to a bad conduct discharge, 4 months' confinement at hard labor, a forfeiture of $298 pay per month for 4 months, and reduction in grade to private/E-1.

5.  On 18 July 1980, the sentence was approved; however, that portion of the sentence pertaining to confinement at hard labor in excess of 105 days was suspended until 14 January 1981, at which time, unless the suspension was sooner vacated, the suspended portion would be remitted without further action.   

6.  On 8 October 1980, the U.S. Army Court of Military Review affirmed the court-martial's findings and sentence.

7.  Special Court-Martial Order Number 38, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, dated 27 January 1981, ordered execution of the affirmed sentence.

8.  Accordingly, on 17 February 1981, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, as a result of a court-martial with a bad conduct discharge.  The DD Form 214 he was issued shows he completed 1 year, 11 months, and 16 days of active service.  He had time lost under Title 10 U.S. Code section 972 from 1 May-23 July 1980.  He was on excess leave (creditable for all purposes except pay and allowances) from 24 July 1980-17 February 1981.

9.  Army Regulation 635-200, in effect at the time, set forth the basic policy for the separation of enlisted personnel.  Paragraph 11-2 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.

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

10.  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 received nonjudicial punishment for failure to go at the time prescribed to his appointed place of duty.

2.  He was given a bad conduct discharge pursuant to the approved sentence of a special court-martial.

3.  The appellate review was completed and the affirmed sentence ordered executed.  Conviction and discharge were effected in accordance with applicable laws and regulations in effect at the time, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

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 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.

5.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to an honorable or a general discharge.

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)                                         AR20120011226



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120011226



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1