IN THE CASE OF:	  

		BOARD DATE:	  27 February 2014

		DOCKET NUMBER:  AR20130010522 


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 to an honorable discharge. 

2.  The applicant states the court-martial conviction occurred after the expiration of his term of service (ETS) date. 

3.  The applicant does not provide any 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's records show he enlisted in the U.S. Army Reserve under the Delayed Entry Program (DEP) for 6 years on 29 July 1980.  

3.  He was discharged from the DEP on 6 October 1980 and subsequently enlisted in the Regular Army for 3 years on 7 October 1980.  He was trained in and held military occupational specialty 13B (Cannon Crewmember). 

4.  He served in Germany from on or about 19 January 1981 to on or about 13 January 1983 and he was promoted through the ranks to specialist four/E-4.  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar, Sharpshooter Marksmanship Qualification Badge with Grenade Bar, Army Service Ribbon, and Overseas Service Ribbon.  

5.  On 23 September 1981, in Germany, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being incapacitated for proper performance of duties as a result of previous indulgence in intoxicating liquor.  

6.  On 16 August 1983, the applicant was apprehended while driving on Fort Hood, TX, with a revoked license.  

7.  On 12 October 1983, he was convicted by a special court-martial of:

* one specification of operating a vehicle on Fort Hood, TX, while his driving privileges were suspended, on or about 16 August 1983 
* one specification of operating a vehicle on Fort Hood while intoxicated on or about 16 August 1983
* one specification of wrongfully possessing marijuana on or about 16 August 1983

8.  The court sentenced him to confinement at hard labor for 2 months, a forfeiture of $382.00 pay per month for 2 months, reduction to the lowest enlisted grade, and a bad conduct discharge.

9.  On 9 November 1983, 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.

10.  In July 1984, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

11.  Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, Special Court-Martial Order Number 80, dated 18 July 1984, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.
12.  He was discharged on 10 August 1984.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 3 years, 8 months, and 15 days of creditable military service during this period and he had lost time from 12 October 1983 to 30 November 1983. 

13.  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. 

14.  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.

15.  Army Regulation 635-200 provides for the separation of enlisted personnel:

	a.  Chapter 1 states a Soldier may be retained after his/her term of service has expired when one of the following applies: (1) An investigation of his/her conduct has been started with a view to trial by court-martial; (2) Charges have been preferred; or (3) The Soldier has been apprehended, arrested, confined, or otherwise restricted by the appropriate military authority.  A Soldier who is awaiting trial or result of trial by court-martial when he/she would otherwise be eligible for discharge or release from active duty will not be discharged or released until final disposition of the court-martial charges.  Soldiers under sentence to an unsuspended dishonorable or bad conduct discharge will not be discharged before appellate review is completed, unless so directed by Department of the Army.  

	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.  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.
16.  Title 10. U.S. Code, section 507 provides authority in certain cases to retain Soldiers on active duty beyond ETS.  

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 apprehended on 16 August 1983, prior to the expiration of his enlistment contract.  He also appears to have had court-martial charges preferred against him prior to his ETS.  A Soldier may be retained after his ETS has expired when an investigation of his conduct has been started with a view to trial by court-martial; charges have been preferred; or the Soldier has been apprehended, arrested, confined, or otherwise restricted by the appropriate military authority.  A Soldier will also not be discharged until the appellate review has been completed.

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)                                         AR20130010522





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ABCMR Record of Proceedings (cont)                                         AR20130010522



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