IN THE CASE OF:	  

		BOARD DATE:  5 September 2013

		DOCKET NUMBER:  AR20130001852 


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 he was young, immature, and irresponsible when he joined the military in 1976, and he wishes he had taken a more serious and mature approach to his service.  After his discharge he became an ordained minister, received a master's degree in computer programming, and raised five children with his spouse.  He is an advocate and volunteer for the homeless and a Third Degree Mason.  An upgraded discharge would open previously closed doors of opportunity and would enable him to greater help the people in his community.

3.  The applicant provides no 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 was born on 10 October 1958.  Having 5 months and 18 days of prior service in the Army National Guard (ARNG), the applicant was discharged from the ARNG and assigned to the U.S. Army Reserve (USAR).  On 25 July 1979, he was relieved from his Reserve component assignment and ordered to active duty for a 17 month and 27 day commitment at the age of
20 years, 9 months, and 16 days.  He served in military occupational specialty 31M (Multichannel Communication Equipment Operator).

3.  On 10 June 1980, consistent with his plea, he was found guilty by a special court-martial of one specification of absenting himself from his unit from
20 September 1979 to 1 April 1980.  He was sentenced to confinement at hard labor for 2 months, forfeiture of pay per month for 2 months, and reduction to the rank/grade of private (PV1)/E-1.

4.  On 2 November 1981, consistent with his plea, he was found guilty by a special court-martial of stealing two U.S. Treasury checks from two Soldiers totaling $673.00.  The court sentenced him to confinement at hard labor for
6 months (in excess of 45 days suspended for 9 months), forfeiture of pay per month for 6 months, reduction to PV1/E-1, and a BCD.

5.  On 24 February 1982, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

6.  On 7 July 1982, the provisions of Article 71(c) having been complied with, the sentence was affirmed and his BCD was ordered to be duly executed.

7.  On 13 July 1982, he was subsequently discharged from the USAR under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) chapter 11 (Dishonorable and BCD), as a result of court-martial.  He completed 2 years, 3 months, and 13 days of net active service this period with 11 months and 7 days of time lost due to being absent from his unit and confinement.  He also had 83 days of excess leave.

8.  The applicant petitioned the Army Discharge Review Board (ADRB) for upgrade of his discharge.  On 24 April 1984, after careful consideration of his military records and all other available evidence, the ADRB determined the applicant was properly and equitably discharge.  On 1 May 1984, he was advised that his request for discharge upgrade was denied.


9.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  It states:

	a.  Chapter 11, in effect at the time, prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulated 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.

	b.  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.

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 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 contention that his BCD should be upgraded has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations.

3.  The applicant's contentions and post-service conduct are noted; however, 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.

4.  Records show the applicant was over 20 years of age at the time of his offense.  There is no evidence indicating the applicant was less mature than other Soldiers of the same age who successfully completed their military service.

5.  In view of the foregoing, there is an 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 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)                                         AR20130001852



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ABCMR Record of Proceedings (cont)                                         AR20130001852



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