IN THE CASE OF:	  

		BOARD DATE:  5 February 2013

		DOCKET NUMBER:  AR20120012766 


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 there is no error, only that he would like to get an upgrade of his discharge.

3.  The applicant provides no additional documentary 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 27 June 1985.  He completed training and he was awarded military occupational specialty 16S (man portable air defense system (MANPADS) crewman).  The highest rank/grade he held was specialist four (SP4)/E-4.
3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 9 October 1987 for twice failing to go at the time prescribed to his appointed place of duty.

4.  Special Court-Martial Order Number 61, issued by Headquarters, 5th Infantry Division (Mechanized), dated 3 December 1987, shows that on 19 October 1987, pursuant to his pleas, he was convicted of wrongful use of marijuana and twice breaking restriction.  The court sentenced him to a bad conduct discharge, confinement for 45 days, and forfeiture of $438.00 pay per month for 1 month.  The sentence was approved by the appropriate authority.

5.  On 3 February 1988, the U.S. Army Court of Military Review affirmed the court-martial's findings and sentence.

6.  Special Court-Martial Order Number 29, issued by Headquarters, 5th Infantry Division (Mechanized), dated 16 May 1988, with that portion of the sentence extending to confinement having been served, ordered the execution of the bad conduct discharge.

7.  Accordingly, on 23 May 1988, the applicant was discharged as a result of a court-martial with a bad conduct discharge.  The DD Form 214 he was issued at the time shows he completed 2 years, 9 months, and 22 days of creditable active service with time lost from 20 October through 23 November 1987.  His DD Form 214 further shows he was on excess leave (creditable for all purposes except pay and allowances) from 4 December 1987 through 23 May 1988.

8.  Army Regulation 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, set forth the basic policy for the separation of enlisted personnel.

	a.  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.

	b.  Paragraph 3-7a provided that 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. 

	c.  Paragraph 3-7b provided that 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted NJP for twice failing 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.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20120012766



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ABCMR Record of Proceedings (cont)                                         AR20120012766



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