IN THE CASE OF:	   

		BOARD DATE:	  3 June 2014

		DOCKET NUMBER:  AR20130017466 


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 upgrade of his bad conduct discharge to honorable.

2.  The applicant states it has been 24 years and his discharge is still holding him back from employment opportunities.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  On 30 April 1979, the applicant enlisted in the Regular Army.  He completed his initial training as an infantryman.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows in Item 18 (Appointments and Reductions) the following advancements and promotions:

* 30 October 1979 - advanced to private/E-2
* 1 August 1980 - advanced to private first class (PFC)/E-3
* 1 May 1981 - advanced to specialist four (SP4)/E-4
* 5 October 1984 - promoted to sergeant (SGT)/E-5

4.  The applicant accepted nonjudicial punishment (NJP) on three occasions:

	a.  6 June 1987 for disrespect toward a superior commissioned officer; disobeying a lawful command; and for failing to go at the prescribed time to his appointed place of duty ;

	b.  18 September 1987 for wrongful use of cocaine; and

	c.  21 December 1987 for making and uttering three checks totaling $200.00 without sufficient funds in the bank.

5.  Special Court-Martial Order Number 10, Headquarters, 2nd Armored Division, dated 20 April 1988 shows the applicant was convicted by a special court-martial under the Uniform Code of Military Justice (UCMJ) for:

	a.  violating Article 86 under the UCMJ by being absent without leave (AWOL) for 2 days; and

	b.  five specifications of violating Article 134 of the UCMJ for:

* Wrongful use of an unauthorized identification card with intent to deceive
* Impersonating a noncommissioned officer (NCO)
* Breaking restriction (twice)
* Wrongful solicitation of another to impersonate an NCO

	c.  The sentence, adjudged on 28 March 1988, was:

* A bad conduct discharge
* Confinement at hard labor for 4 months
* Forfeiture of $447.00 pay per month for 4 months
* Reduction to private (PV1/E-1

	d.  The convening authority approved the sentence, except for the bad conduct discharge.  Seventeen days of pretrial confinement was credited against the sentence to confinement.

6.  On 16 June 1988, the United States Army Court of Military affirmed the findings of guilty and the sentence.  The court awarded the applicant 4 days additional credit for failing  to have a magistrate review the confinement from its seventh day.  If he had already been released from confinement, he was to receive an administrative credit of 6 days against the approved partial forfeiture of pay.

7.  Special Court-Martial Order Number 1, U.S. Army Correctional Activity, Fort Riley, KS, dated 3 January 1989, directed that because Article 71(c) had been complied with, the sentence to a bad conduct discharge was to be executed.

8.  The applicant's DD Form 214 shows he was discharged on 19 January 1989 under the provisions of Army Regulation 635-200, chapter 3, due to court-martial.  He received a bad conduct characterization of service.

9.  On 24 November 1989, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his characterization.  The ADRB determined his discharge was proper and equitable and denied his request.

10.  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.

11.  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.
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 contends that his bad conduct discharge should be upgraded to honorable because it has been 24 years since his discharge and it is still holding him back from employment opportunities.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the final discharge appropriately characterizes the misconduct for which the he was convicted.

3.  The applicant has not provided any documentary evidence or convincing argument showing he did not commit the crimes for which he was convicted.  The mere passage of time since his conviction is not sufficient justification to warrant clemency.

4.  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 or to moderate the severity of the sentence imposed.  Given the seriousness of the applicant's misconduct, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the above, the applicant’s request should be denied.

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)                                         AR20130017466



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ABCMR Record of Proceedings (cont)                                         AR20130017466



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