IN THE CASE OF:	  

		BOARD DATE:  6 February 2014

		DOCKET NUMBER:  AR20130009733 


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.

2.  The applicant states:

* he was young and immature at the time; he took a pistol from a teenager but he did not want to keep it in the barracks; he sold the gun at a bar to an individual who turned out to be German police 
* he and his wife at the time were attacked by an assailant and while defending themselves, she killed (incomplete sentence)
* he panicked and ran home to Arizona; but, a year later the police came looking for him 
* when he returned to Texas, all his troubles began; he was sentenced to 75 years for something he did not do
* his wife took her own life and left him stuck with the prison sentence; however, he is coming up on parole in 2014
* he wants his discharge upgraded so he can get a decent job

3.  The applicant provides

* Discharge orders
* Bad Conduct Discharge Certificate
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2-1 (Personnel Qualification Record)
* DA Form 2-2 (Insert Sheet to DA Form 2-1 (Record of Court-Martial Conviction))
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 was born in May 1960. 

3.  The applicant enlisted in the Regular Army, at 19 years of age, on 11 October 1979.  He was trained in and held military occupational specialty 16D (HAWK Missile Crewman).  

4.  He served in Germany from on or about 18 February 1980 to on or about 6 October 1980.  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar and Expert Marksmanship Qualification Badge with Grenade Bar.

5.  On 8 May 1980, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for disobeying a lawful order.

6.  On 14 November 1980, he was convicted by a special court-martial of:

* one specification of attempting to wrongfully and unlawfully sell a privately owned firearm
* one specification of attempting to steal a privately-owned firearm
* one specification of wrongfully and unlawfully borrowing a privately-owned firearm
* one specification of wrongfully and unlawfully carrying a privately-owned firearm
* one specification of being absent without leave from 16 September 1980 to 5 October 1980

7.  The court sentenced him to confinement at hard labor for 2 months, a forfeiture of $334.00 pay per month for 2 months, and a bad conduct discharge.

8.  On 30 January 1981, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

9.  On 28 April 1981, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

10.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, Special Court-Martial Order Number 416, dated 9 November 1981, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

11.  He was discharged on 2 December 1981.  His DD Form 214 shows he was discharged as a result of court-martial in accordance with Army Regulation 
635-200 (Personnel Separations) with a bad conduct discharge.  This form further shows he completed 1 year, 9 months, and 26 days of creditable military service during this period and he had lost time from 16 September to 4 October 1980 and 7 October 1980 to 1 January 1981. 

12.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

13.  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.

14.  Army Regulation 635-200, 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.

15.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a special 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 bad conduct discharge pursuant to an approved sentence of a special 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 applicant was 19 years of age at the time of his enlistment and nearly 20 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

4.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this Board 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.

5.  His service was not satisfactory 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)                                         AR20130009733





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ABCMR Record of Proceedings (cont)                                         AR20130009733



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