IN THE CASE OF: 

		BOARD DATE:	  15 July 2014

		DOCKET NUMBER:  AR20130019833 


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.

2.  The applicant states he has been out of the military for the past 20 years.  He has been trying to get his discharge upgraded to at least have his military record acknowledged because through it all, he is still a Soldier.  He had a house fire in which he lost all his military records.

3.  The applicant provides no additional evidence.

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.  The applicant enlisted in the Regular Army on 4 May 1989 and he was trained in and held military occupational specialty 13B (Cannon Crewmember).

3.  He was assigned to 1st Battalion, 7th Field Artillery Regiment, Fort Drum, NY. 
He attained the rank/grade of private/E-2.

4.  On 10 April 1992, he was convicted by a special court-martial of two specifications of being absent without leave (AWOL) from 19 to 20 November 1991 (shown as 1992, but corrected during the appellate review) and from 2 December 1991 to 11 March 1992 and one specification of committing an assault with means likely to produce death or grievous bodily injury.  

5.  On 22 June 1992, the convening authority approved a lesser sentence of confinement for 150 days, a bad conduct discharge, and forfeiture of $500.00 pay per month for 5 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.

6.  On 29 September 1992, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

7.  He was discharged on 24 February 1993 in accordance with Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, Orders 041-31, dated 10 February 1993.

8.  Although not available for review, his DD Form 214 (Certificate of Release or Discharge from Active Duty) would have shown he was discharged as a result of a court-martial in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) with a bad conduct discharge.  This form would also have also shown his creditable active service and listed his lost time.

9.  A staff member of the Board contacted the applicant on 11 June 2014 at the telephone number he listed on his application in an effort to request a copy of his DD Form 214.  However, the telephone number he listed is disconnected.

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 and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  Army Regulation 635-200, 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 offense 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 general 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.  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.

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 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)                                         AR20130019833



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ABCMR Record of Proceedings (cont)                                         AR20130019833



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