IN THE CASE OF

		BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130019148 


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 be upgraded to general, under honorable conditions, or in such a way as to qualify him for educational benefits or reenlistment.

2.  The applicant states the approved actions for the court-martial sentence precluded the bad conduct discharge portion that was recommended.  If the bad conduct discharge portion was not to be executed, then wasn't he supposed to stay on active duty?  Doesn't he still have a period of active duty service to complete?  Correction of this mistake is paramount for him to receive his educational benefits.

3.  The applicant provides copies of:

* Letter from Army Review Boards Agency, dated 6 September 2013
* General Court-Martial Order Number 5, 1st Infantry Division, Fort Riley, KS, dated 16 January 2008

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 5 May 2005, the applicant, enlisted in the Regular Army.  He completed his initial training as an infantryman.

3.  General Court-Martial Order Number 5, 1st Infantry Division, Fort Riley, KS, dated 16 January 2008 shows the applicant was convicted under the Uniform Code of Military Justice of violating:

	a.  Article 86 by being absent without authority from on or about 29 January to 8 February 2008;

	b.  Article 128 by unlawfully striking a private first class in the face with his closed fist;

	c.  Article 92 (Specification 1) by wrongfully failing to register his privately owned firearm; by failing to gain permission from his unit commander to store his privately owned firearm within the barracks; and by wrongful possession of an unregistered firearm on Fort Riley;

	d.  Article 92 (Specification 2) by wrongfully failing to register his privately owned firearm; by wrongfully possessing an unregistered firearm on Fort Riley; by wrongfully transporting a readily accessible privately owned firearm in a vehicle at Fort Riley; and by wrongfully transporting and possessing a loaded privately owned firearm in a vehicle at Fort Riley;

	e.  Article 112a by wrongful use of marijuana; and

	f.  Article 134 by breaking restriction.

4.  The applicant's sentence, as adjudged on 18 September 2007, included:

	a.  reduction to private, pay grade E-1;

	b.  forfeiture of all pay and allowances;

	c.  confinement for 9 months; and

	d.  a bad conduct discharge.
5.  On 16 January 2008, the convening authority approved the sentence, and, except for the part extending to a bad conduct discharge, ordered it to be executed.

6.  General Court-Martial Order Number 21, United States Army Field Artillery Center and Fort Sill, OK, dated 15 January 2009, announced the sentence had been affirmed.  Article 71(c) having been complied with, and the sentence to confinement having been completed, that portion of the sentence pertaining to a bad conduct discharge was to be executed.

7.  The applicant's DD Form 214 shows that he was discharged from the Regular Army on 27 March 2009 under the provisions of Army Regulation 
635-200, chapter 3, due to court-martial.  He received a bad conduct characterization of service.

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 contends that his bad conduct discharge should be upgraded to general, under honorable conditions, or in such a way as to qualify him for educational benefits or reenlistment because he believes it was not approved by the convening authority.

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 applicant was convicted.

3.  The applicant's belief that the portion of his court-martial sentence pertaining to the bad conduct discharge was not approved is mistaken.  The convening authority approved the entire sentence but delayed execution of that portion pertaining to a bad conduct discharge to allow for proper appeal and review of the trial.  The subsequent court-martial order published at Fort Sill, OK on 
15 January 2009 makes it very clear that he was to be given a bad conduct discharge.

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, 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)                                         AR20130019148





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130019148



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1