IN THE CASE OF:	   

		BOARD DATE:	  11 June 2013

		DOCKET NUMBER:  AR20120020753 


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 (BCD) and award of any benefits due.

2.  He states it has been over 20 years since the incident and/or court-martial occurred.  He states that prior to the incident he was a good Soldier as verified by the awards he received.  He offers he is still remorseful and ashamed of his actions because it was his intent to retire from the Army.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certificate of Completion from Truck Driver Institute, Inc., dated
20 January 2012
* three Employee Status and Change Record sheets, dated between
30 July 2007 and 8 November 2009
* Order for Custody/Visitation Granted to Individual(s), dated 23 June 2010

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 7 July 1983.  He was trained in and awarded military occupational specialty 71L (Administrative Specialist).

3.  On 14 January 1986, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 23 December 1985 to 2 January 1986.

4.  On 2 May 1986, pursuant to his pleas, he was convicted by a general court-martial of three specifications of larceny of U.S. currency of a value of $400.00, $200.00, and $14.00, respectively, and burglary with the intent to commit larceny.

5.  On 2 May 1986, the court sentenced him to reduction to the rank/grade of private (PV1)/E-1, confinement for 3 years, a forfeiture of all pay and allowances, and a dishonorable discharge.  The convening authority approved only so much of the sentence as provided for a BCD, confinement for 18 months, reduction to E-1, and a forfeiture of all pay and allowances.  On 30 October 1986, the U.S. Court of Military Review affirmed the findings and sentence.

6.  On 26 June 1987, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph
3-11, by reason of as a result of court-martial.  He completed 2 years, 9 months, and 16 days of creditable active service with 1 year, 6 months, and 4 days of time lost due to AWOL and confinement.  The DD Form 214 he was issued at the time shows he was awarded or authorized the:

* Army Achievement Medal
* Army Commendation Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar 

7.  The applicant provided:

	a.  A certificate that shows he successfully completed the Semi-Tractor-Trailer Driver Training course on 20 January 2012.

	b.  Three Employee Status and Change Record sheets that indicate he is successfully employed and doing well in the companies.

	c.  An Order of Custody, dated 23 June 2010, that granted him joint legal custody of his son with his residence as the primary residence of his son.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 establishes policy and procedures for separating members with a dishonorable discharge or a BCD.  It provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence must be ordered duly executed.

	b.  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.

	c.  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.  

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's contention that his discharge should be upgraded after 20 years was considered.  However, there are no provisions in Army regulations for automatically upgrading a discharge after a period of time has elapsed.  The applicant must provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances that warrant an upgrade.  Therefore, his contention is not sufficient as a basis to upgrade his discharge.

2.  His contentions regarding his awards were considered.  However, his awards/achievements do not provide sufficient evidence that would warrant special recognition.  Likewise, the fact that he has turned his life around, that he is gainfully employed, and he now has custody of his son was also considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

3.  The evidence of record shows he was convicted by a general court-martial that was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

4.  He was sentenced to a BCD pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

5.  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.  While there is a record of good service, it is presumed that this service was taken into consideration at the time of sentencing. Therefore, given his offenses and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20120020753



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ABCMR Record of Proceedings (cont)                                         AR20120020753



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