IN THE CASE OF:	  

		BOARD DATE:	    19 November 2013

		DOCKET NUMBER:  AR20130005609 


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 honorable.

2.  The applicant states his discharge is in error.  He has been nominated for membership in The American Legion by the U.S. Congress for his outstanding service and loyalty to the United States of America and for meeting the strict requirements set forth by Congress.

3.  The applicant provides a copy of his American Legion Certificate of Nomination.

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 19 February 1980.  He completed training and was awarded military occupational specialty 16D (Hawk Missile Crewmember).

3.  The applicant's records show he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, as follows:

* on 13 May 1980, for being absent from his place of duty on or about 9 May 1980
* on 3 November 1980, for assaulting another Soldier on or about 7 October 1980
* on 2 February 1981, for disobeying a lawful order and leaving his place of duty without authority on or about 17 January 1981

4.  Headquarters, 3d Infantry Division, Special Court-Martial Order Number 51, dated 24 March 1982, shows the applicant pled guilty and was found guilty of larceny and stealing property of two other Soldiers with an overall value of about $1,079.00.  He was sentenced to forfeiture of $367.00 pay for 6 months, confinement at hard labor for 6 months, and a bad conduct discharge.

5.  On 24 March 1982, the convening authority approved so much of the sentence as provided for forfeiture of $367 pay for 3 months, confinement at hard labor for 3 months, and a bad conduct discharge.  The record of trial was forwarded to the Judge Advocate General of the Army for appellate review.

6.  On 15 June 1982, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

7.  There is no indication he petitioned the U.S. Court of Appeals for the Armed Forces for a review of his case.

8.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, Special Court-Martial Order Number 216, dated 15 September 1982, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

9.  On 13 October 1982, the applicant was discharged in accordance with his affirmed sentence.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed a total of 2 years, 4 months, and 28 days of creditable military service with lost time from 19 January to 15 April 1982.

10.  The applicant provides a copy of his American Legion Certificate of Nomination which shows he has been nominated for membership in The American Legion by the U.S. Congress for his honorable service in the U.S. Armed Forces and for his outstanding service and loyalty to the United States of America.  It certifies that he met the strict requirements for membership in The American Legion set forth by Congress.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	c.  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 ordered duly executed.

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 does not support the applicant's request for an upgrade of his bad conduct discharge.

2.  The special court-martial proceedings against him were conducted in accordance with law and regulations.  His conviction and sentence were properly reviewed and affirmed, and the sentence was ordered to be duly executed.

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 record of indiscipline and absent any mitigating factors, the type of discharge directed and the reasons therefor were appropriate.  As a result, clemency is not warranted in this case.

4.  In view of the foregoing, there is no basis for granting the relief he requests.

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 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)                                         AR20130005609



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ABCMR Record of Proceedings (cont)                                         AR20130005609



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