BOARD DATE:	  19 June 2014

		DOCKET NUMBER:  AR20130018988 


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 (BCD).

2.  The applicant states:

* he would like to respectfully apply for an honorable or general discharge
* at the time of his hearing, he was not notified he was able to hire an attorney of his choice
* he does not feel all of the supporting facts were presented
* he was given very little information and was directed by his superior to follow instructions and cooperate with the investigation
* he was given directives to comply with things that were not accurate in the case
* the Attorney assigned to him was not working in his interest; he was not consulted when decisions were made on his behalf
* he respectfully requests his discharge be reconsidered

3.  The applicant provides no additional evidence in support of his request.

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 17 October 1990, the applicant enlisted in the Regular Army.  He completed his initial entry training and was awarded military occupational specialty (MOS) 54B (Chemical Operations Specialist).  Upon completion of the MOS 54B course, he attended and completed the Basic Airborne Course at Fort Benning, GA.

3.  On 29 April 1991, upon completing the Basic Airborne Course, he was reassigned to the 25th Chemical Company, 8th Infantry Division (Mechanized),  in the Federal Republic of Germany (FRG).

4.  On 21 April 1993, before a special court-martial, he was convicted of:

* a single specification of Charge I, Conspiracy to commit larceny and burglary between 3 February 1993 and 11 February 1993
* 2 specifications of Charge II, Larceny of private property, on 3 February and 11 February 1993
* 2 specifications of Charge III, Burglary with the intent to commit larceny, on 3 February and 11 February 1993

He was sentenced to confinement for 2 months, forfeiture of $543.00 pay per month for 2 months, reduction to the rank/grade of private/E-1, and a BCD.

5.  On 12 July 1993, the convening authority approved the sentence and, except for the bad conduct discharge, ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

6.  On 8 September 1993, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  The U.S. Court of Military Appeals denied his petition for review.

7.  Special Court-Martial Order Number 55, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK on 10 December 1993, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered his bad conduct discharge executed.
8.  On 13 January 1994, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3.  His DD Form 214 shows he was discharged as a result of court-martial, with a bad conduct character of service.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel as a result of court-martial.  The version in effect at the time stipulated the following:

   a. An honorable discharge is a separation from the Army 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 meets 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.

   b. 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.  

   c. An enlisted person will receive a BCD pursuant only to an approved sentence of a court-martial imposing a BCD.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his BCD was carefully considered; however, there is insufficient evidence to support his request.  

2.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offense charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.  

3.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

4.  In view of the foregoing, there is insufficient basis to grant 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)                                         AR20130018988



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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