BOARD DATE:	  11 February 2014

		DOCKET NUMBER:  AR20130008438 


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 there is no error in his record; he is simply requesting an upgrade of his discharge.

3.  He 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 5 February 1991.  Upon completion of initial entry training he was stationed in Germany.  He deployed to Southwest Asia from 4 June to 7 July 1991.  The highest rank/grade he attained while serving on active duty was private first class/E-3.  However, he held the rank/grade of private/E-1 at the time of separation.

3.  His record contains a Department of the Army Report of Result of Trial and General Court-Martial (GCM) Order Number 7, published by Headquarters, Fort Hood, Fort Hood, TX, which shows the applicant pled guilty and was found guilty of seven specifications of violating Article 121 of the Uniform Code of Military Justice (UCMJ) for:

* Larceny of property in excess of $100 on or about 31 March 1993
* Larceny of property and U.S. Currency, of a combined value in excess of $100 on or about 7 April 1993
* Larceny of property in excess of $100 on or about 31 March to 7 April 1993
* Larceny of property in excess of $100 on or about 9 April 1993
* Wrongful appropriation of a motor vehicle on or about 9 April 1993
* Larceny of U.S. Currency and property of a value in excess of $100 on or about 9 April 1993
* Larceny of property in excess of $100 on or about 1 to 10 April 1993

4.  The following sentence was adjudged on 2 November 1993:

* Reduction to private/E-1
* Forfeiture of all pay and allowances
* Confinement at hard labor for 18 months
* Bad conduct discharge

5.  The sentence was approved and the record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

6.  On 23 November 1994, the U.S. Army Court of Criminal Appeals upheld the findings of guilty and found the sentence correct in law and fact and affirmed the findings of guilty and the sentence.

7.  GCM Order 54, issued by U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, KS, on 20 March 1995, shows the appropriate authority ordered the BCD to be duly executed.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 7 April 1995 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3 as a result of court-martial.  This form also shows his character of service as "Bad Conduct."
9.  Army Regulation 635-200:

	a.  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.

	b.  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.

	c.  Paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial.

	d.  Paragraph 3-11, provides that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

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 applicant's request is duly noted.  However, it is not sufficiently mitigating to absolve his misconduct during his period of service.

2.  The applicant's 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.

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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore 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 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)                                         AR20130008438



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ABCMR Record of Proceedings (cont)                                         AR20130008438



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