BOARD DATE:	  26 November 2013

		DOCKET NUMBER:  AR20130007769 


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 (BCD).

2.  The applicant states he was mentally affected by his wife's untimely death in an automobile accident.  Since that time he has been in control of himself and wishes to resume a normal life.  An upgrade of his BCD is needed to secure gainful employment.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 25 February 1980.  He completed training and was awarded military occupational specialty 13F (Fire Support Specialist).  The highest rank/grade he attained while serving on active duty was staff sergeant/E-6.  However, he held the rank/grade of private  (PVT)/E-1 at the time of his discharge.

3.  His record contains General Court-Martial Order Number 70, issued by Headquarters, 3d Infantry Division, dated 25 September 1990, which shows the applicant was found guilty of:

* Making a false official statement on or about 4 April 1990
* Drunk driving on or about 4 April 1990
* Assault with a dangerous weapon on or about 4 April 1990
* Committing adultery on or about 7 January 1990 and 4 April 1990
* Unlawful entry on or about 4 April 1990

4.  The following sentence was adjudged on 18 July 1990:

* reduction to PVT/E-1
* confinement for 15 months
* a BCD

5.  On 29 May 1991, the U.S. Army Court of Military Review upheld the findings of guilty, found the sentence correct in law and fact, and affirmed the findings of guilty and the sentence.

6.  On 23 December 1991, the U.S. Court of Military Appeals denied consideration of the applicant's petition to grant a review of the decision by the U.S. Army Court of Military Review.

7.  The applicant's record contains General Court-Martial Order Number 26, issued by United States Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, KS, dated 14 February 1992, which states in a general court-martial case the applicant's sentence to a BCD, confinement for   15 months, and reduction to PVT/E-1, adjudged on 18 July 1990, as promulgated in General Court-Martial Order Number 70, issued by Headquarters, 3rd Infantry Division, dated  25 September 1990, has been finally affirmed.  The provisions of Article 71(c) having been complied with, the BCD will be executed.

8.  On 6 March 1992, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial with a BCD.  His DD Form 214 shows he completed  

10 years, 9 months, and 12 days of net active service this period of enlistment
 with time lost for the period 18 July 1990 to 17 October 1991.

9.  The applicant's record does not contain any evidence and he does not provide any evidence to support his contention that he was affected mentally at the time due to the untimely death of his spouse.    

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a BCD 
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.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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.

	c.  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 applicant's trial by a general 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 BCD pursuant to an approved sentence of a general 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.  The ABCMR does not reexamine issues of guilt or innocence under a court-martial conviction.  This is the court-martial convening authority and the appellate review function and cannot be upset by the ABCMR.  Any redress by this ABCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  

4.  While the untimely death of his spouse is both tragic and unfortunate, his record does not contain any evidence and he does not provide any evidence to support his contention that he was affected mentally at the time due to the death of his spouse.

5.  His service was unsatisfactory 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)                                         AR20130007769



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ABCMR Record of Proceedings (cont)                                         AR20130007769



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