IN THE CASE OF:	  

		BOARD DATE:	  16 January 2014

		DOCKET NUMBER:  AR20130007660 


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.

2.  The applicant states that it was stated during his court-martial that his bad conduct discharge would be upgraded within 6 months.  He is no longer that rash person and he has lived an honorable life.  

3.  The applicant does not provide any 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's records show he enlisted in the Regular Army on 26 February 1986 and he held military occupational specialty 16S (MANPADS Crewmember).  He was assigned to Fort Carson, CO. 
3.  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar and Expert Marksmanship Qualification Badge with Grenade Bar.  The highest rank/grade he attained during his military service was private/E-2. 

4.  On 10 October 1986, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully disobeying a lawful order. 

5.  On 9 October 1986, he was reported in an absent without leave (AWOL) status by his unit.  He returned to military control on 10 October 1986.  

6.  On 15 January 1987, consistent with his pleas, he was convicted by a special court-martial of:

* five specifications of failure to repair
* two specifications of disobeying a lawful order
* one specification of being disrespectful in language
* two specifications of assaulting a noncommissioned officer
* one specification of unauthorized absence

7.  The court sentenced him to a bad conduct discharge, confinement for a period of 135 days, a forfeiture of $400.00 pay per month for 5 months, and a reduction to the lowest enlisted grade. 

8.  On 19 February 1987, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

9.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

10.  Headquarters, 4th Infantry Division, Fort Carson, CO, Special Court-Martial Order Number 49, dated 31 July 1987, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

11.  He was discharged on 31 August 1987.  His DD Form 214 (Certificate of Release of Discharge from Active Duty) shows he was discharged as a result of court-martial in accordance with Army Regulation 635-200 (Personnel Separations) with a bad conduct discharge.  This form further shows he completed 1 year, 3 months, and 3 days of creditable military service during this period and he had lost time on 9 October 1986 and from 10 October 1986 to 29 January 1987. 

12.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

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 635-200, 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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a special 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 discharge appropriately characterizes the misconduct for which he was convicted.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence was ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

3.  His contention that he was told his discharge would be upgraded within 
6 months lacks merit.  The Army has never had a policy wherein a characterization of service is changed due to passage of time.  Likewise, post-service conduct does not mitigate his court-martial conviction. 
4.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this Board 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.

5.  His service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.  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)                                         AR20130007660



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ABCMR Record of Proceedings (cont)                                         AR20130007660



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