BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120012797 


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 (BCD) be upgraded to honorable or under honorable conditions.

2.  The applicant states he was having mental issues at the time of his infraction that led to his court-martial and BCD.

3.  The applicant provides no additional documentation.

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.  National Archives Form 13038 (Certification of Military Service), issued on 
4 May 2004, states that the applicant served in the Army of the United States from 20 November 1978 to 3 December 1980.  He attained the rank of private first class, pay grade E-3, and was honorably discharged.

3.  During the above period of service, the applicant accepted nonjudicial punishment (NJP) for disobeying a lawful order to remain out of civilian clothing and for four incidents of failing to go to his appointed place of duty.

4.  On 4 December 1980, the applicant reenlisted in the Army.

5.  On 15 January 1981, the applicant accepted NJP for failing to go to morning formation.

6.  Special Court-Martial Order Number 217, Headquarters, 1st Armored Division, dated 24 November 1981 shows:

	a.   The applicant was convicted of violating Article 86 under the Uniform Code of Military Justice (UCMJ) by being absent without leave (AWOL) from on or about 3 June to 18 August 1981.

	b.  The sentence, adjudged on 29 September 1981, was:

* confinement at hard labor for 4 months
* forfeiture of $334.00 pay per month for 5 months
* reduction to pay grade E-1
* bad conduct discharge

	c.  The convening authority approved the sentence.

7.  Special Court-Martial Order Number 134, Fort Leavenworth, Kansas, dated 19 March 1982, remitted the unexecuted portion of the sentence to confinement.

8.  Special Court-Martial Order Number 492, Fort Leavenworth, Kansas, dated 20 September 1982, affirmed the sentence as stated above.  Article 71(c) having been complied with, the sentence, as modified, was to be executed.

9.  The applicant's DD Form 214 shows that he was discharged from the Regular Army on 6 November 1984 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-2, due to court-martial.  He received a bad conduct characterization of service.

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.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a states 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.

12.  Army Regulation 635-200, paragraph 3-7b, states 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 contends that his BCD should be upgraded to honorable or under honorable conditions because he was having mental issues at the time.

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.  The applicant has not provided any documentary evidence to support his contention that he had mental issues at the time, or that such issues were the proximate cause of his misconduct.

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)                                         AR20120012797





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ABCMR Record of Proceedings (cont)                                         AR20120012797



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