IN THE CASE OF: 

		BOARD DATE:	    3 April 2014

		DOCKET NUMBER:  AR20130012940 


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 reconsideration of his earlier request for an upgrade of his bad conduct discharge.

2.  The applicant states:

* he was indirectly involved in a scheme of theft committed by two other Soldiers who decided to steal money from the Soldier's locker
* the Soldier returned early to the unit and reported the theft to the unit commander who called everyone to formation
* the unit commander announced that whoever committed the crime would pay and he would be made an example
* the two Soldiers who committed the crime confessed; this caused him (the applicant) to panic - so he did nothing
* he was in the wrong place at the wrong time; he ultimately pled guilty because of his role in the incident 
* his attorney told him if he kept a clean record for 2 years his bad conduct discharge would be changed to honorable and he would be allowed to reenlist

3.  The applicant does not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120013892, on 7 February 2013.

2.  The applicant provides a new argument.  This constitutes new evidence and warrants reconsideration by the Board. 

3.  The applicant's records show he enlisted in the Regular Army on 22 August 1978 and he held military occupational specialty 16P (Air Defense Artillery Short Range Missile Crewman).  

4.  On 1 June 1980, he departed his Fort Bliss, TX, unit in absent without leave (AWOL) status.  He was arrested by civil authorities on 11 June 1980 and placed in civil confinement.  He ultimately returned to military control on 29 August 1980. 

5.  On 4 January 1981, he was apprehended by civil authorities and taken to the El Paso County jail for the civilian charge of violating his parole.  He returned to military control on 7 January 1981.  

6.  On 16 April 1981, he was apprehended by civil authorities and taken to the El Paso County jail for harassment charges.  He returned to military control on 30 April 1981. 

7.  He was reassigned to and served in Korea from on or about 23 August 1981 to on or about 1 September 1982.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, and Noncommissioned Officer Professional Development Ribbon.

8.  On 15 June 1983, at Fort Hood, TX, consistent with his pleas, the applicant was convicted by a special court-martial of one specification of conspiring with another Soldier to commit larceny and one specification of theft.  The court sentenced him to reduction to the lowest enlisted grade, a forfeiture of $382.00 pay per month for 3 months, confinement at hard labor for 3 months, and a bad conduct discharge.

9.  On 9 August 1983, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 3 months, reduction to the lowest enlisted grade, and forfeiture of $286.00 pay per month for 3 months 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 early 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 and Fort Sill, Fort Sill, OK, Special Court-Martial Order Number 52, dated 18 May 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 6 June 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 - Enlisted Personnel) with a bad conduct discharge.  This form further shows he completed 5 years, 3 months, and 5 days of creditable military service during this period and he had multiple periods of lost time. 

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.  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.  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 Army has never had a policy wherein a characterization of service is upgraded due to passage of time.  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.

4.  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 to amend the decision of the ABCMR set forth in Docket Number AR20120013892, dated 7 February 2013.


      _______ _   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)                                         AR20130012940





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ABCMR Record of Proceedings (cont)                                         AR20130012940



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