IN THE CASE OF:	  

		BOARD DATE:	    26 September 2013

		DOCKET NUMBER:  AR20130003516 


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 that his bad conduct discharge (BCD) be upgraded.  

2.  The applicant states:

	a.  He believes his discharge should be upgraded due to the fact that he was given the choice to stay in the Army.

	b.  Had he chosen to stay, he would have never received the BCD.

	c.  During his court-martial, it came out that the accusations against him were false so he was found not guilty.

	d.  After the frustration of being given a court-martial, he was given the option to stay or to get out but he chose to be discharged due to family reasons.

	e.  His wife was pregnant and having complications at the time so he decided to get out in order to be there for her.

	f.  He was not advised that he was going to receive a BCD if he decided to get out.

	g.  They waited until he made the decision to get out to tell him he was going to receive a BCD.

	h.  He feels the only reason he was given a BCD was because he did not want to stay in the Army and not because of something he did.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty).  

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 21 October 1991.

3.  He accepted nonjudicial punishment (NJP) on:

* 12 January 1993 for failing to go at the time prescribed to his appointed place of duty, for providing a "bad" check in the amount of $150.00 to the post exchange, and for failure to pay a just debt
* 3 February 1993 for stealing an automated teller machine card, property of another Soldier

4.  On 14 April 1993, he was found guilty by a special court-martial of disrespect toward a superior commissioned officer.  He was found not guilty of an additional charge with two specifications.  

5.  He was sentenced to a BCD and confinement for one month.  The sentence was approved on 17 June 1993.

6.  On 21 June 1995, the sentence having been affirmed and the provisions of Article 71(c) having been complied with, the BCD was ordered to be duly executed.

7.  Accordingly, he was discharged on 16 August 1995 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial with a BCD.

8.  There is no evidence in his available military records which supports his contention that he was given the option of staying in the military or the option to be discharged or that he was found not guilty of all the charges against him.  

9.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgraded of his BCD.

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

	a.  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.

	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.

	c.  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.

11.  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 applicant's contention that his BCD should be upgraded has been carefully considered.  

2.  The trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the final discharge appropriately characterized the misconduct for which he was convicted.

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 seriousness of his criminal offense and absent sufficient mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

4.  His record of indiscipline includes NJP on two occasions and a court-martial conviction.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

5.  He contends that the only reason he was given a BCD was because he did not want to stay in the Army and not because of something he did; however, there is no evidence in his military records, and he provided none, that support his contention.

6.  Based on the foregoing, there is no basis to grant the 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)                                         AR20130003516





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130003516



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1