BOARD DATE:	  23 January 2014

		DOCKET NUMBER:  AR20130008305 


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, in effect, an upgrade of his dishonorable discharge to under other than honorable conditions.

2.  The applicant states:

	a.  He has been an active and constructive tax-paying citizen for the last 12 years and he would like the dishonorable stigma removed from his records.

	b.  Since his transition to civilian life he has striven to better serve his fellow citizens and improve himself through hard work and determination.

	c.  Every year he increases his economic status and pays his fair taxes from said gains.

3.  The applicant provides no additional 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 enlisted in the Regular Army on 26 June 1984 for a period of 2 years.  He completed his training and he was awarded military occupational specialty 19K (M1 armor crewman).

3.  On 2 July 1986, he was convicted by a general court-martial of conspiring to commit larceny and robbery of weapons and ammunition, violating a lawful general regulation (possessing a bayonet-style knife with a blade longer than 3 inches), disposing of military property by throwing rifles and ammunition into a pond, leaving his sentinel post before he was properly relieved, larceny, and robbery.  He was sentenced to reduction to E-1, forfeiture of all pay and allowances, confinement for 20 years, and a dishonorable discharge.  On 12 August 1986, the convening authority approved the sentence.

4.  On 11 March 1987, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

5.  On 26 January 1988, the convening authority ordered the dishonorable discharge duly executed.

6.  He was issued a dishonorable discharge on 4 March 1988 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial.  He completed a total of 1 year, 9 months, and 9 days of creditable active service with 701 days of lost time.

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

	a.  Chapter 3 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  Chapter 3 also states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.

8.  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 contends he has been an active and constructive tax-paying citizen for the last 12 years.  However, good post-service conduct alone is not a basis for upgrading a discharge.

2.  A trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  His record of service included one general court-martial conviction and 701 days of lost time.

4.  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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is no 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)                                         AR20130008305



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ABCMR Record of Proceedings (cont)                                         AR20130008305



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