IN THE CASE OF:
BOARD DATE: 6 March 2014
DOCKET NUMBER: AR20130012385
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 an honorable or general discharge.
2. The applicant states he was a very immature young boy at the time. He has developed into a mature man now and regrets this mistake.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), seven third-party letters of support, and copies of documents from his personnel records.
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 applicants 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 applicants 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 2 January 1980 for a period of 3 years. He completed basic training and advanced individual training as an infantryman. He was transferred to Fort Stewart, Georgia for his first and only assignment.
3. On 14 January 1981, he was convicted pursuant to his pleas by a special court-martial of misappropriating an automobile belonging to another Soldier and being absent without leave (AWOL) from 5 to 8 December 1980. He was sentenced to confinement at hard labor for 2 months, reduction to pay grade E-1, and a BCD.
4. On 2 April 1981, the U.S. Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.
5. On 19 August 1981, he was discharged due to a duly affirmed court-martial conviction. He had served 1 year, 4 months, and 21 days of active service.
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. A review of his official records also show that he was arrested in Hinesville, Georgia by civil authorities on 16 November 1980 for possession of marijuana and he escaped from custody while being processed for return to military control. He was reported as being AWOL until he surrendered to military authorities. However, the record is silent as to any punishment imposed.
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's contentions, supporting documents, and letters of support 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 during such a short period of service.
2. The applicant's trial by court-martial was warranted by the gravity of the offense 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.
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) AR20130012385
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ABCMR Record of Proceedings (cont) AR20130012385
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