BOARD DATE:	  17 December 2013

		DOCKET NUMBER:  AR20130008084 


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.  He states that he was a young, immature 20-year old at the time of the crime who did not understand the severity of his actions and the effect it would have on the rest of his life.  He maintains that he has been an upright citizen, husband, and father who is active in his community and church since his release from the Army.

3.  He provides a self-authored statement and two supporting statements.

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 7 April 1983 at the age of 18 years and 6 months.

3.  On 13 October 1987, he was convicted by a general court-martial of conspiracy to commit larceny of personal property of a value of about $795.00, larceny of various personal equipment of a total value of about $1,815.50, unlawfully breaking and entering a dwelling house with the intent to commit larceny, wrongfully and unlawfully making a false official statement, and wrongfully endeavoring to influence the actions and statements of a noncommissioned officer.  The court sentenced him to reduction to the grade of E-1, confinement for 4 years, forfeiture of all pay and allowances, and a BCD.  The convening authority approved the sentence and the U.S. Army Court of Criminal Appeals affirmed the findings and sentence on an unknown date.  The BCD was ordered executed on 25 October 1988.

4.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 25 November 1988 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 
3-11.  He was issued a BCD and assigned a separation code of JJD.  He completed 4 years, 6 months, and 6 days of active service with lost time from 13 October 1987 to 25 November 1988.

5.  The two supporting statements submitted by the applicant speak highly of the applicant's helpfulness and dependability.  One author stated he has known the applicant for more than 30 years.  He said he could confirm that the applicant was a man of great integrity who is dedicated to his family, church duties, and community service.  Another author offered that the applicant was a faithful supporter and helper within the community outreach and ministry programs.

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

	a.  Chapter 3 establishes policy and procedures for separating members with a dishonorable discharge or BCD.  It 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 must be 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.

7.  Court-martial convictions stand as adjudged or as 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 records show the applicant was 18 years and 6 months of age at the time of his enlistment and 23 years of age at the time of his conviction.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  Although the applicant provided two supporting statements attesting to his dependability and his outstanding qualities, good post-service conduct alone is not a basis for upgrading a discharge.

3.  He was convicted 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.

4.  He was given a BCD pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

5.  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.  Therefore, given his offense and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20130008084



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ABCMR Record of Proceedings (cont)                                         AR20130008084



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