BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130020748 


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 his bad conduct discharge be upgraded to a general, under honorable conditions discharge.

2.  The applicant states he received a bad conduct discharge when he was wrongly accused of taking food from a cafeteria on Post.  There was no reason for him to take food from a cafeteria when he ate at the dining facility for free.

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 13 May 1982.  On 8 September 1982, he was assigned to the 144th Ordnance Company, Germany.

3.  On 6 March 1984, he pled guilty to and was convicted by a special court-martial of one specification each of stealing a wallet from a civilian and stealing a tray of food from the Army and Air Force Exchange Service (AAFES).

4.  He was sentenced to reduction to private/E-1, forfeiture of $300 per month for 3 months, confinement for 75 days, and a bad conduct discharge.  On 29 March 1984, the sentence was approved.  He was subsequently confined at the U.S. Army Personnel Control Facility (PCF), Fort Knox, KY. 

5.  On 7 August 1984, the United States Army Court of Military Review affirmed the approved findings and the sentence.

6.  Special Court-Martial Order Number 177, dated 13 November 1984, issued by Headquarters, U.S. Army Armor Center and Fort Knox, shows the applicant's sentence having been affirmed and complied with, the convening authority ordered his bad conduct discharge executed.

7.  On 7 December 1984, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial with a bad conduct characterization of service.  

8.  On 1 September 1999, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined he was both properly and equitably discharged.

9.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  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.







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 evidence of record shows the applicant's trial by a special court-martial was warranted by the gravity of the offenses charged.  He pled guilty to, and was found guilty of, more than just stealing food.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  He could have raised his claim of being wrongly accused as an issue to be considered in mitigation during the court-martial and/or appellate process; however, the record shows he pled guilty to the charges.

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

3.  After a review of his record of service, it is clear he did not meet the criteria for a general discharge, or any other characterization of service other than the one he received.  Therefore, 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 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)                                         AR20130020748





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ABCMR Record of Proceedings (cont)                                         AR20130020748



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