IN THE CASE OF:	  

		BOARD DATE:	  12 November 2013

		DOCKET NUMBER:  AR20130005525 


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 his bad conduct discharge be upgraded to general, under honorable conditions. 

2.  The applicant states:

	a.  When he was 17 years old, he was given a choice by his parents to either join [the military] or live on the streets.  He is the first to admit that he was a problem child, but the Army wasn't the answer to his problems.  He didn't even have a high school diploma; he was a dope doing foolish things with a death wish.  He is now composing this letter as a rational person with a life wish.  He no longer makes excuses; he now embraces solutions.

	b.  Many years later, doctors found out he was bipolar.  Through medication and God's grace, he was able to live productively.  He obtained his general education diploma in 1994 and received a certification as a tutor in adult education.  He put two children through college and he now attends college to obtain an associate degree in human services.

	c.  He is now asking for his discharge to be upgraded so he can continue his studies and work in helping other veterans transition into civilian life.  He is no longer on medication and has not been for several years.  His purpose is to help the unfortunate of this world.

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 enlisted in the Regular Army on 12 July 1979 when he was 17 years, 4 months, and 20 days of age.  He completed basic combat training at Fort Jackson, SC, and on 18 September 1979, he was assigned for advanced individual training to Company B, 4th Training Battalion, 2nd Signal Training Brigade, Fort Gordon, GA.  

3.  He was reported as absent without leave (AWOL) from his assigned unit as follows from:

* 1 to 5 November 1979
* 7 to 13 November 1979
* 15 November to 13 December 1979

4.  On 29 December 1979, he was convicted by a general court-martial of one specification each of:

* being AWOL from 1 to 5 November 1979, 7 to 13 November 1979, and 15 November to 13 December 1979
* stealing a tape player of a value in excess of $100 from a fellow unit Soldier
* wrongfully appropriating a tape player of a value in excess of $50 from a second fellow unit Soldier

5.  He was sentenced to the forfeiture of all pay and allowances, confinement at hard labor for 6 months, and to be discharged with a bad conduct discharge.  He was placed in confinement at Fort Leavenworth, KS.

6.  On 14 March 1980, the U.S. Army Court of Military Review found the approved findings of guilty and the sentence correct in law and fact and affirmed the findings of guilty and the applicant's sentence.

7.  General Court-Martial Order Number 370, dated 20 June 1980, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, shows the applicant's sentence having been affirmed and complied with, the convening authority ordered his bad conduct discharge executed.  On 20 June 1980, he was discharged accordingly.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged on 20 June 1980 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 11-2 with an under other than honorable conditions characterization of service.  He completed 3 months and 23 days of net active service and he had 6 months and 17 days of lost time due to being AWOL and in confinement.

9.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  Paragraph 11-2, of the version in effect at the time, prescribed the policies and procedures for separating members with 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 was ordered duly executed.
   
10.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  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.

11.  Army Regulation 635-200, 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.  

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 of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  The applicant contends his discharge should be upgraded because he was young at the time of his service.  Records show he was almost 18 years of age at the time of his offenses.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  Although his post-service conduct may be noteworthy, it doesn’t mitigate the fact that he repeatedly went AWOL while he was in the service and stole from fellow Soldiers. 

4.  After a review of his record of service, it is clear that his service did not meet the criteria for an honorable or a general discharge or any characterization of service other than the one he received.  Therefore, he is not entitled to 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)                                         AR20130005525





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ABCMR Record of Proceedings (cont)                                         AR20130005525



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