BOARD DATE:  25 July 2013

		DOCKET NUMBER:  AR20130000352


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 to honorable.

2.  The applicant states he would like his discharge upgraded before he dies, so he can be buried with military honors.  He believes his discharge was too severe for the offenses he was charged with.

3.  The applicant provides three third-party character reference letters in support of his request.

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.  On 24 July 1979, the applicant enlisted in the Regular Army.  He completed initial entry training and was awarded military occupational specialty 76W (Petroleum Supply Specialist).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  Upon completion of his initial entry training on or about 19 November 1979, he was assigned to Headquarters Company, 4th Battalion, 4th Training Brigade, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, MO.

4.  On 31 March 1980, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order on or about 24 March 1980.

5.  On 18 November 1980, he received NJP under the provisions of Article 15, UCMJ, for providing a false statement under oath on or about 27 September 1980.

6.  Before a general court-martial at Fort Leonard Wood, MO, he was convicted of:

* a single specification of charge 1 for violating Article 116, UCMJ, by wrongfully engaging in a fight with a fellow Soldier on or about 22 December 1980
* a single specification of charge 3 for violating Article 134, UCMJ, by unlawfully carrying a concealed weapon on or about 9 January 1981
* a single specification of an additional charge for violating Article 134, UCMJ, by wrongfully possessing marijuana on or about 13 February 1981

7.  On 28 April 1981, the court sentenced him to reduction to the rank/grade of private/E-1, confinement at hard labor for 1 year, forfeiture of all pay and allowances, and discharge from the Army with a bad conduct discharge.

8.  On 17 July 1981, the convening authority approved his sentence and, except for the bad conduct discharge, ordered it executed.  The applicant was confined at the U.S. Disciplinary Barracks, Fort Leavenworth, KS.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

9.  On 30 July 1982, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in his court-martial.  The U.S. Court of Military Appeals denied his petition for review.

10.  General Court-Martial Order Number 17 issued by the U.S. Disciplinary Barracks, Fort Leavenworth, dated 7 January 1983, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge as ordered by General Court-Martial Order Number 9 issued by Headquarters, U.S. Army Training Center Engineer and Fort Leonard Wood, dated 17 July 1981, was ordered duly executed.

11.  On 28 January 1983, the applicant was discharged pursuant to his court-martial.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2, as a result of court-martial with a bad conduct character of service.

12.  He provides three third-party letters of support/character reference.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 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.

	a.  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.

	b.  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.

	c.  Paragraph 3-10 provides that a Soldier will be given a bad conduct discharge 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.

14.  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.

15.  According to the Manual of Courts-Martial, the maximum punishment for:

	a.  violation of Article 116 (Riot and Breaching the Peace) for riot is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years; and for breaching the peace is confinement for 6 months and forfeiture of two-thirds of pay per month for 6 months;

	b.  violation of Article 117 (Provoking Speech or Gesture) is confinement for 6 months and forfeiture of two-thirds pay per month for 6 months; and

	c.  violation of Article 134 (General) for:

		(1)  communicating a threat is a maximum sentence of dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years;

		(2)  unlawfully carrying a concealed weapon is a bad conduct discharge, confinement for 1 year, and forfeiture of all pay and allowances; and

		(3)  wrongfully possessing marijuana (less than 30 grams) is a dishonorable discharge, forfeiture of al pay and allowances, and confinement for 2 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was given a bad conduct discharge pursuant to an approved sentence by a general court-martial which 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.  The appellate review was completed and the affirmed sentence ordered duly executed.

2.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial 
conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  Contrary to his contention that his punishment was too severe, the evidence of record shows the applicant's punishment was lenient given the multiple offenses he committed.  Several of the offenses for which he was charged could have led to a dishonorable discharge and a lengthy confinement sentence.

4.  In any case, 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 meritorious.  His service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  In view of the foregoing, there is 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 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20130000352



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