IN THE CASE OF:	  

		BOARD DATE:	  29 October 2013

		DOCKET NUMBER:  AR20130005471


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 a general discharge.

2.  The applicant states he believes he was not given a fair chance in the matter. He states he was an outstanding Soldier for 3 years and he was never in trouble before or after his discharge.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 12 September 1989.

3.  On 8 August 1992, the applicant was convicted, pursuant to his pleas, by a general court-martial of the following:

* Being absent without leave (AWOL) from 8 May to 18 May 1992
* Willfully disobeying a lawful order of a commissioned officer on 19 May 1992
* Wrongfully appropriating a motor vehicle on 12 May 1992
* Larceny of personal property of a total value in excess of $100.00 and military property of a value of less than $100.00 on 1 May 1992

4.  The applicant was sentenced as follows:

* forfeiture of all pay
* reduction to pay grade E-1
* confinement for 30 months
* bad conduct discharge

5.  The convening authority approved only so much of the sentence as provided for forfeiture of $400.00 pay per month for 15 months, reduction to pay grade
E-1, confinement for 15 months, and a bad conduct discharge.  Except for that portion pertaining to his bad conduct discharge, the convening authority ordered the sentence executed.

6.  The U.S. Army Court of Military Review held the findings of guilty and the sentence as approved by the convening authority correct in law and fact, and affirmed the findings of guilty and the sentence.

7.  General Court-Martial Order Number 125, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 24 September 1993, noting that the sentence had been finally affirmed and that Articl3e 71(c) having been complied with, ordered the bad conduct discharge executed.

8.  On 29 October 1993, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of a duly reviewed and affirmed general court-martial conviction with a bad conduct discharge.  He completed
3 years, 3 months, and 24 days of creditable active service.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-11 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 duly executed.

	b.  Paragraph 3-7a states 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 states 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.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that 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 modify the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  Pursuant to his pleas, the applicant was convicted by a general court-martial of being AWOL, disobeying a lawful order by a commissioned officer, wrongfully appropriating a motor vehicle, and larceny of personal and military property.  He was discharged as a result of a duly reviewed and affirmed general court-martial conviction.  He has not provided any evidence to show the character of service he received was in error or unjust.  Therefore, there is no basis for granting the applicant an honorable or a general discharge.

2.  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)                                         AR20130005471



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ABCMR Record of Proceedings (cont)                                         AR20130005471



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