IN THE CASE OF:	  

		BOARD DATE:  18 July 2013

		DOCKET NUMBER:  AR20130000291 


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).

2. The applicant states:

* he was young and naïve at the time of his offense
* while under the influence of drugs and alcohol he removed property from another person's room
* the matter was remedied by a court-martial vice unit level punishment
* being close to his expiration of term of service (ETS) and scared, his counsel recommended he throw himself on the mercy of the court 
* he thought he would receive a general, under honorable conditions or an under other than honorable conditions discharge since he was so close to his ETS date

3. The applicant provides no additional documents. 

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 was born on 29 August 1957 and enlisted in the Regular Army on 30 October 1984 at the age of 27 years, 2 months, and 2 days.

3.  The applicant's record is void a copy of his initial court-martial order; however, his record contains a DA Form 4430 (Report of Result of Trial), issued by Headquarters, 1st Infantry Division, Fort Riley, KS, that shows on 8 October 1987, consistent with his plea, he was found guilty at a general court-
martial of stealing a videocassette recorder in the amount over $100.00.

4.  The applicant was sentenced to be reduced to private (PV1)/E-1, forfeit all pay and allowances, confined for a period of 9 months, and a BCD.

5.  General Court-Martial Order Number 696, issued by Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, dated 20 October 1988, shows that Article 71(c) having been complied with, the applicant's sentence was affirmed and the BCD was ordered duly executed.

6.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 2 November 1988 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
chapter 3, by reason of court-martial.  This form further lists the applicant's character of service as bad conduct.

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

	a.  Paragraph 3-11 states 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 ordered duly executed.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

	b.  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.

	c.  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.

8.  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 evidence of record shows the applicant was convicted by a general court-martial and he received a BCD.  Trial by a court-martial was warranted by the serious nature of the offense for which he was charged and convicted.  The sentence is commensurate with the misconduct for which he was convicted.

2.  The applicant's record shows he was 27 years of age at the time of his enlistment and over 29 years of age at the time of his offense.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  There is no evidence that indicates drug and alcohol contributed to his acts of misbehavior or misconduct, not that such use would have excused his misconduct.  There is no evidence in the applicant's record nor did he submit any evidence that shows he was treated unfairly or that his rights were violated.

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

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.  Absent any mitigating factors, the type of discharge directed was 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)                                         AR20130000291



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ABCMR Record of Proceedings (cont)                                         AR20130000291



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