IN THE CASE OF:  

		BOARD DATE:  17 December 2013

		DOCKET NUMBER:  AR20130007323


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 appearance before the Army Board for Correction of Military Records (ABCMR) to plead for an upgrade of his bad conduct discharge.

2.  The applicant states the record is neither erroneous nor unjust, he only wishes to plead for clemency.

3.  The applicant provides no additional evidence in support of his request.

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.  On 22 August 1984, the applicant enlisted in the Regular Army.  He completed initial entry training and was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  On or about 8 January 1985, upon completion of initial entry training, he was assigned to 1st Battalion, 15th Infantry Regiment, in the Federal Republic of Germany.

4.  On or about 20 April 1987, his unit reported him in an absent without leave (AWOL) status.  On or about 30 May 1987, he was returned to military control. 

5.  On 2 September 1987, at Fort Knox, KY, he was convicted by a general court-martial of:

* 2 specifications of Charge I for violating Article 80 of the Uniform Code of Military Justice (UCMJ), for attempting to wrongfully possess (with intent to distribute) and use cocaine, on 14 February 1987
* a single specification of Charge II for violating Article 86 of the UCMJ, for being AWOL from on or about 20 April through 30 May 1987
* 2 specifications of Charge III for violating Article 92 of the UCMJ, for violating lawful general regulations on 14 February 1987
* a single specification of Charge IV for violating Article 112a of the UCMJ, for wrongfully possessing marijuana (with intent to distribute), on
14 February 1987

6.  The court sentenced him to reduction to the rank/grade of private/E-1, confinement at hard labor for 18 months, a forfeiture of all pay and allowances, and a bad conduct discharge.

7.  On 15 October 1987, the convening authority modified his confinement period to confinement at hard labor for 14 months, approved the sentence, and, except for the bad conduct discharge, ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

8.  On 16 December 1987, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in his court-martial.  The U.S. Court of Military Appeals denied his petition for review.

9.  On 18 March 1988, the Chairman of the Army Clemency and Parole Board, on behalf of the Secretary of the Army, approved his parole and directed that he be released from confinement and placed in a parole status effective 19 April 1988.

10.  General Court-Martial Order Number 189, issued by the U.S. Disciplinary Barracks, Fort Leavenworth, KS on 21 July 1988, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge as ordered by General Court-Martial Order Number 46, issued by Headquarters, U.S. Army Armor Center and Fort Knox, KY on 15 October 1987, was ordered duly executed.

11.  On 19 August 1988, the applicant was discharged pursuant to his court-martial.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-11, as a result of court-martial, and he was given a bad conduct character of service.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates 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.

   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.

13.  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.

14.  Army Regulation 15-185 (ABCMR) governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that either the Director of the ABCMR or the ABCMR may grant a formal hearing, before which the applicant, counsel, and witnesses may appear whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  In this case, the evidence of record was sufficient for the ABCMR to arrive at a fair and impartial decision.  Based upon the facts in this case it was determined that no formal hearing was required.

2.  The applicant was given a bad conduct discharge pursuant to an approved sentence by a general court-martial which was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

3.  All requirements of law and regulation were met and his rights were fully protected.  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.

4.  In view of the foregoing, there is 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 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20130007323



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