IN THE CASE OF:	  

		BOARD DATE:	  10 September 2013

		DOCKET NUMBER:  AR20130000918 


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 to an honorable discharge.

2.  The applicant states he served his country honorably and deserves to have this error or injustice corrected.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Standard Form 180 (Request Pertaining to Military Records), dated
12 December 2012

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 27 September 1977, he enlisted in the Regular Army.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 25 January 1979 for wrongfully selling duty-free property to a Korean National on 14 November 1978
* 17 September 1979 for failing to obey a lawful order from an NCO on
7 September 1979
* 28 December 1979 for failing to obey a lawful order from a noncommissioned officer (NCO) on 15 November 1979 and being disrespectful in language toward an NCO
* 10 January 1980 for failing to obey a lawful order from a warrant officer (WO) and being disrespectful in language toward a WO on 18 December 1979
* 17 January 1980 for failing to go at the time prescribed to his appointed place of duty on 5 January 1980

4.  On 17 November 1980, contrary to his pleas, he was found guilty before a special court-martial of:

* two specifications of disrespect toward a commissioned officer
* failing to obey a lawful order from a commissioned officer
* striking a commissioned officer

5.  He was sentenced to be discharged from the service with a bad conduct discharge.  On 21 November 1980, he was placed on excess leave pending appellate review.

6.  On 21 January 1981, the convening authority approved the sentence.

7.  On 22 July 1981, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

8.  On 19 October 1981, the provisions of Article 71(c) having been complied with, his sentence to a bad conduct discharge was ordered executed.

9.  On 5 November 1981, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of court-martial, with a bad conduct discharge.

10.  The applicant subsequently applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 8 June 1983, the ADRB reviewed and denied the applicant's request for discharge upgrade.  On 8 June 1983, the applicant was so notified.

11.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must have been completed and affirmed sentence ordered duly executed.

	b.  Paragraph 1-13a provides that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  Paragraph 1-13b provides that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

12.  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 shows the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge 

were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or achievement that would warrant special recognition.  He had accepted NJP on five occasions.  Given the seriousness of the offenses for which he was convicted by a special court-martial, his record was not considered sufficiently meritorious to warrant relief in this case.  As a result, there is no basis for granting the applicant an honorable or a general discharge.

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.  Given the applicant's undistinguished record of service and 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 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)                                         AR20130000918



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ABCMR Record of Proceedings (cont)                                         AR20130000918



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