IN THE CASE OF:
BOARD DATE: 27 February 2014
DOCKET NUMBER: AR20130011709
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 that his bad conduct discharge (BCD) be upgraded to a fully honorable discharge.
2. The applicant states that his discharge should be upgraded to honorable because of the service he provided to the United States.
3. The applicant provides no additional documents with his application.
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 25 April 1979 for a period of 3 years. He completed his basic training at Fort Leonard Wood, Missouri and his advanced individual training as an infantryman at Fort Benning, Georgia before being transferred to Germany on 26 September 1979.
3. On 31 March 1981, he was convicted by a special court-martial pursuant to his plea of robbing another Soldier by means of force and violence. He was sentenced to confinement at hard labor for 3 months, reduction to the pay grade of E-1, a forfeiture of $200.00 per month for 3 months, and a BCD.
4. On 9 September 1981, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.
5. Accordingly, the applicant was discharged pursuant to a duly-reviewed and affirmed court-martial conviction on 25 March 1982. He completed 2 years, 8 months, and 20 days of active service and had 72 days of lost time due to imprisonment.
6. There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.
7. 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 contentions have been noted; however, he did not provide sufficient evidence to warrant an upgrade of his discharge when considering the serious nature of his offense.
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 and the BCD appropriately characterizes the misconduct for which he was convicted. As such, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case and there is an insufficient evidentiary basis for granting the applicant an upgrade of his BCD to any other characterization of service.
3. Additionally, 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 therefore were appropriate. As a result, clemency is also not warranted in this case.
4. Accordingly, there appears to be no basis to grant his request for an upgrade of his 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) AR20130011709
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ABCMR Record of Proceedings (cont) AR20130011709
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