IN THE CASE OF:	  

		BOARD DATE:  2 January 2014

		DOCKET NUMBER:  AR20130008103 


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 his bad conduct discharge be upgraded to an honorable discharge.

2.  The applicant states he would like his discharge upgraded.

3.  The applicant provides a fax transmittal confirmation report with an accompanying signature page.

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 30 September 1985 and held military occupational specialty 88M (Motor Transport Operator).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  On 27 May 1987, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to be at his appointed place of duty and disobeying a lawful order from the command sergeant major to get a haircut.

4.  His record contains a DA Form 4126-R (Bar to Reenlistment Certificate), dated 12 June 1987, which shows he received summarized NJP under the provisions of Article 15 of the UCMJ on 5 August 1986, company level NJP under the provisions of Article 15 of the UCMJ on 27 May 1987, and numerous negative counseling statements between 9 September 1986 and 11 May 1987.  His commanding officer stated his personal behavior brought discredit upon his unit and the Army.  He further stated the applicant demonstrated no potential for future service as indicated by his repeated counseling statements.  The bar to reenlistment was approved on 22 July 1987.

5.  General Court-Martial (GCM) Order Number 23, issued by Headquarters, U.S. Army Infantry Center and Fort Benning, Fort Benning, GA, on 8 July 1988 shows the applicant was convicted of willfully disobeying the order of a superior noncommissioned officer to turn down the volume on his stereo and larceny of $649.00 in U.S. currency.  The sentence, adjudged on 10 May 1988, included a bad conduct discharge, confinement for 7 months, forfeiture of $500.00 of pay per month for 7 months, and reduction to grade of E-1.

6.  On 25 August 1988, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

7.  GCM Order Number 108, issued by the U.S. Army Correctional Activity, Fort Riley, KS, on 19 January 1989, ordered the sentence be duly executed.

8.  Accordingly, on 31 January 1989, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial with a bad conduct discharge.  He completed 2 years, 11 months, and 28 days of creditable active service with 164 days of time lost.

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

	a.  Paragraph 3-11 states 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 sentence affirmed before it can be 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 states 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.

10.  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 shows the applicant was convicted by a GCM of willfully disobeying the order of a superior noncommissioned officer and larceny of $649.00 in U.S. currency and was discharged pursuant to the approved sentence.  His trial by 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 characterized the misconduct for which he was convicted.

2.  He provided no evidence to show his discharge or the court's decision to find him guilty is unjust or as a result of improper actions.  There is no apparent error 
or injustice in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations with due process and with no violation of his rights.

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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general discharge.

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)                                         AR20130008103



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ABCMR Record of Proceedings (cont)                                         AR20130008103



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