IN THE CASE OF:	  

		BOARD DATE:  25 July 2013

		DOCKET NUMBER:  AR20130000441 


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.  He states he was 20 years old, young, and a little foolish at the time of his discharge.  He feels an injustice occurred because he did not receive an alternative disciplinary action. 

3.  He does not provide any additional evidence. 

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 13 November 1979.  He was 
18 years of age at the time of enlistment.

3.  On 3 November 1980, he was convicted by a special court-martial of:  wrongfully appropriating U.S. currency, a value of $56.00; wrongfully appropriating pool cue sticks, a value of about $25.00; failing to obey a lawful order; and breaking arrest.  The court sentenced him to reduction to the grade of E-1, a forfeiture of $200.00 pay for 4 months, confinement at hard labor for 75 days, and a BCD.  The convening authority approved the sentence, but the execution of that portion, thereof, adjudging forfeitures in excess of 3 months and confinement at hard labor in excess of 50 days were suspended until 3 May 1981, with the provision of automatic remission. 

   a.  On 12 August 1981, the U.S. Army Court of Military Review set aside and dismissed the findings of guilty for wrongfully appropriating $56.00.  The remaining findings of guilty and the sentence were affirmed.  

   b.  On 17 November 1981, the unapplied portion of the sentence to a forfeiture of $200.00 pay per month for a period of 4 months (but execution of that portion thereof adjudging forfeitures in excess of 3 months) was suspended until 3 May 1981, at which time, unless the suspension was sooner vacated, it would be remitted without further action.

   c.  On 2 March 1982, the U.S. Army Court of Military Review denied the applicant's petition for review. 
   
   d.  On 15 April 1982, it was ordered that the sentence be executed with the actual execution held in abeyance until disposition of the current charges against the applicant.
   
4.  On 27 April 1982, he was convicted by a summary court-martial of stealing a: Sanyo AM/FM cassette recorder, a value of about $180.00; Panasonic Mini-Recorder, a value of about $70.00; Minolta G-1 Camera, a value of about $260.00;  Minolta 135mm Lens, a value of about $100.00; and a Vivator Flash, a value of about $30.00.  The total value of the items was about $640.00, the property of another Soldier.  The court sentenced him to a forfeiture of $367.00 pay for 1 month and confinement at hard labor for 30 days.  

5.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD on 7 June 1982.  He was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, by reason of "as a result of court-martial."  He completed 2 years, 6 months, and 16 days of creditable active service with the period 3 November 1980 to 11 November 1980 listed as lost time.
 
6.  On 25 March 1987, he appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 9 February 1988, after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  The board denied his request for a discharge upgrade.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 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.

	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.  

8.  Court-martial convictions stand as adjudged or as 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 available records show the applicant was 18 years of age at the time of his enlistment and 20 years and 6 months old at the time of discharge.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  He was convicted by a special 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.

3.  He was given a BCD pursuant to an approved sentence of a special 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.

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.  Therefore, given his offense 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)                                         AR20130000441





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ABCMR Record of Proceedings (cont)                                         AR20130000441



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