IN THE CASE OF:

		BOARD DATE:  27 June 2013

		DOCKET NUMBER:  AR20120022685 


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 an upgrade of his bad conduct discharge (BCD).

2.  The applicant states;

	a.  His first term of service was great.  He gained a lot of experience and he decided to return home and found work utilizing his military experience.  He accepted a position with the Navy Ships Systems Engineering Station, but after
2 years he decided to return to military life.

	b.  He reentered the service in 1981 with the expectation of being accepted to Warrant Officer Flight School and becoming a pilot.  When he learned he would not go to flight school he was devastated and began to have an "I don't care attitude."  It was during this period be made one of the dumbest mistakes in his life.

	c.  He did not know that a video cassette recorder he had purchased from another Soldier was stolen.  When asked by the military police whether he had it or knew where it was he lied and said no.  Later he turned it in to the military police.  His unit commander charged him with receiving stolen property and offered him a Field Grade Article 15.  He decided to pursue a court-martial that led to his bad conduct discharge.

	d.  Since his BCD, he has continued his education, he has earned three associate degrees, and he is planning on working toward a bachelor's degree.


	e.  His BCD has caused him great pain and he requests it be upgraded.

3.  The applicant provides a:

* self-authored letter, dated 1 November 2012
* letter from Theresa Y----, dated 25 November 2012
* statement from Anne R. H-------, undated
* statement from Dorothy W---, dated 10 November 2012
* PTC Career Institute of Philadelphia transcript, dated 11 December 1986
* Sustained Superior Performance Award packet, dated 7 October 1980

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.  Following nearly 8 years of prior active service, the applicant enlisted in the Regular Army on 2 December 1981.  

3.  A DA Form 4430-R (Report of Result of Trial) shows that at a 22 July 1983 special court-martial the applicant pled guilty, in accordance with a pretrial agreement, to one specification of concealing stolen property.

4.  The court sentenced him to reduction to private (PV1)/E-1, confinement for 
2 months, and a BCD.

5.  The U.S. Army Court of Military Review affirmed the finding of guilty and the sentence.

6.  There is no available record that the applicant submitted an appeal to the U.S. Court of Military Appeals.


7.  The applicant was subsequently discharged on 25 April 1984 under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), chapter 3, as a result of court-martial with a BCD.  He completed 2 years, 3 months, and 23 days of net active service this period for 10 years and 23 days of total active service.

8.  The applicant provided:

	a.  Three letters of support describing him as an excellent student, very thoughtful, mature, and well-rounded.

		(1)  Theresa Y---- relates the applicant spent a number of years in the Army and took pride in his service.  But when he returned home he was sad and depressed.  He has emerged from his despair and has turned out to be an excellent student earning three associates degrees.  She respects his academic opinion.

		(2)  Anne R. H------- states she has known the applicant for 11 years.  He is always willing to lend a helping hand.  He is the type of person who makes a difference.  He treats people fairly and is a joy to be around.

		(3)  Dorothy W--- states she has known the applicant for almost 8 years.  He has helped her through several medical issues and others as they needed help.  He is a very rounded person always eager to learn more and do more.  He is someone she can trust and count on.

	b.  An 11 December 1986 transcript of his grades in computer programming at the PTC Career Institute of Philadelphia.

	c.  Documents showing he received a Special Achievement Award from the Naval Ships System Engineering Section on 7 October 1980.

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

	a.  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.


	b.  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.

	c.  Paragraph 3-11 states a member 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 ordered duty executed.

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's submissions, specifically the letters of support, were reviewed; however, they do not mitigate the conduct that led to his court-martial and BCD.

2.  His trial by court-martial was warranted by the gravity of the offense.  The conviction and discharge were effected in accordance with applicable law and regulations and the applicant's discharge appropriately characterizes the misconduct for which he was convicted.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting him an honorable or a general discharge.

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.  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.


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 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)                                         AR20100010650



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ABCMR Record of Proceedings (cont)                                         AR20120022685



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