IN THE CASE OF:	  

		BOARD DATE:  27 August 2013

		DOCKET NUMBER:  AR20120022028 


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, in effect, upgrade of his bad conduct discharge to an honorable discharge.

2.  The applicant states:

	a.  upon returning to duty in Germany after laying his father to rest, he felt alone, looked for friends to comfort him, and without speaking to a Chaplain, he found himself in bad company with Soldiers who were stealing at the time, unbeknownst to him;

	b.  upon returning from a field assignment, he was arrested because another Soldier's radio was found under his bunk;

	c.  although he never committed any crime, he was charged with the theft of the radio, spent nearly a year in prison at Fort Leavenworth, KS, and sentenced to a bad conduct discharge; and

	d.  it is clear he was set up by the original thief and he asks to be given the opportunity to receive an honorable discharge in order to receive benefits and have a chance to give his daughters the life they deserve.

3.  The applicant provides:

* Self-authored statement
* 3 letters of support
* 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 enlisted in the Regular Army (RA) on 21 October 1980.  He was trained in and awarded military occupational specialty 72E (Telecommunications Center Operator).

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows in Item 18 (Appointments & Reductions) he was advanced to private (PV2)/E-2 on 21 April 1981, and this was the highest rank/grade he attained while serving on active duty.  

4.  On 30 August 1982, pursuant to his plea, a special court-martial (SPCM) found the applicant guilty of violating:

* Article 80, Uniform Code of Military Justice (UCMJ) on 9 June 1982 for attempting to steal currency from two Soldiers
* Article 121, UCMJ on 12 June 1982 for stealing a JVC AM/FM Cassette Recorder valued at $210.00 from another Soldier

5.  The resultant sentence imposed by the military judge included a bad conduct discharge, confinement at hard labor for 90 days, forfeiture of pay for 90 days, and reduction to PV1/E-1.  The SPCM convening authority approved the sentence on 21 October 1982.

6.  On 24 January 1983, the U.S. Army Court of Military Review found the approved findings of guilty and the sentence correct in law and fact, and affirmed the findings of guilty and the sentence.

7.  SPCM Order Number 250, issued by Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, dated 4 May 1983, directed that, Article 71c of the UCMJ having been complied with, the bad conduct discharge portion of the sentence be duly executed.  On 26 July 1983, the applicant was discharged accordingly.

8.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), section IV, as a result of court-martial.  He completed 2 years,
6 months, and 24 days of creditable active military service with 250 days of time lost.

9.  The applicant provides three character reference statements from individuals who indicate he is:

* compliant in, above, and beyond his job description
* a wonderful role model
* hard working and displays a positive attitude
* a great leader, very dependable, reliable, and trustworthy

10.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Section IV prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is 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.

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 an honorable discharge because he never committed any crime and to allow him to receive veterans benefits.  However, the evidence of record confirms that during his trial by SPCM, he pled guilty and he was found guilty of the charge of attempting to steal and the charge of larceny.

2.  The applicant was discharged after completion of the appellate process and only after his sentence was affirmed by the appropriate appellate court.  His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  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.  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.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120022028



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120022028



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1