IN THE CASE OF: 

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20130022077 


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 is requesting an upgrade of his discharge because of the time that has passed since his incident while on active duty.  He has matured over the years and asks that his mistake be pardoned.  He was a good Soldier overall.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received several awards and completion of military education.  One bad choice has cost him an entire military career and he now wants to make it right.
  
3.  The applicant provides no additional documentary 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.  On 26 October 1989, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 12B (Combat Engineer).  The highest rank he held was private first class/pay grade E-3.

3.  On 20 December 1991, Headquarters, United States Army Armor Center Fort Knox, issued General Court-Martial Order Number 115.  This order shows he pled guilty and was found guilty of the following offenses:

* willfully and wrongfully damaging private property on or about 17 June 1991
* assaulting another Soldier on or about 17 June 1991
* conspiring with another Soldier to obstruct justice between on or about 17 June 1991 and on or about 6 August 1991 
* making a false official statement on or about 19 June 1991
* disorderly conduct on or about 17 June 1991
* wrongfully endeavoring to impede an investigation on or about 17 June 1991 

4.  He was sentenced to be reduced to private/E-1, forfeiture of all pay and allowances, confinement for 2 years, and to be discharged with a BCD.  Only so much of the sentence as provided for a BCD, confinement for 12 months, forfeiture of all pay and allowances, and reduction to the grade of private/E-1 was approved and, with the exception of the BCD, directed to be executed.

5.  On 10 September 1992, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

6.  On 4 January 1993, Headquarters, United States Army Armor Center Fort Knox, issued General Court-Martial Order Number 3.  It shows the applicant's sentence had been affirmed.  The portion of his sentence pertaining to confinement had been served.  Article 71(c) having been complied with, the convening authority ordered his BCD executed.

7.  On 27 January 1993, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, with a BCD in accordance with the affirmed sentence.  He completed 2 years, 5 months, and 16 days of total active military service.  He had time lost from 15 October 1991 to 30 July 1992.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable discharge or BCD) pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  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.

	c.  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.

9.  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 does not support the applicant's request for an upgrade of his BCD.

2.  He pled guilty to and was convicted of willfully and wrongfully damaging private property, assaulting another Soldier, conspiring with another Soldier to obstruct justice, making a false official statement, disorderly conduct, and wrongfully endeavoring to impede an investigation.  His conviction and sentence by ageneral court-martial was effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  He was not given his BCD until after his conviction and sentence had been reviewed and affirmed by the U.S. Army Court of Military Review.

3.  His records do not show any significant acts of achievement or valor during his military service.

4.  The ABCMR does not grant requests for upgrade of discharges solely based on the passage of time.

5.  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.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20130022077



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ABCMR Record of Proceedings (cont)                                         AR20130022077



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