BOARD DATE: 7 August 2014
DOCKET NUMBER: AR20130022331
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, in effect, correction of his military records by upgrading his bad conduct discharge.
2. The applicant states he is suffering from depression and was not allowed to seek counseling at the time of his discharge.
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 8 January 1991, the applicant enlisted in the Regular Army. He completed his initial training as a cannon crewmember.
3. On 1 March 1996, the applicant was promoted to sergeant, pay grade E-5.
4. On 2 December 1996, the applicant accepted NJP for violation of:
a. Article 86 for failing to go to his appointed place of duty on four separate occasions; and
b. Article 87 for missing movement of his unit due to his own negligence.
5. Special Court-Martial Order Number 2, Fort Benning, GA, dated 10 July 1997 shows the applicant was convicted of violation of:
a. Article 86 for being absent without leave (AWOL) from 3 to 6 March 1997; and
b. Article 112a for wrongful use of cocaine on or about 21 to 28 January 1997.
6. The applicants sentence included a forfeiture of 2/3 pay for 6 months; reduction to private, pay grade E-1; confinement for 6 months; and a bad conduct discharge.
7. On 10 July 1997, the convening authority approved the sentence, except for the part extending to a bad conduct discharge, and ordered it to be executed. The forfeiture was waived effective 21 May 1997 until 20 November 1997, with direction that such monies be paid to his spouse.
8. Special Court-Martial Order Number 37, Fort Knox, KY, dated 15 June 1998, 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.
9. The applicant's DD Form 214 shows that he was discharged from the Regular Army on 11 August 1998 under the provisions of Army Regulation
635-200, chapter 3, due to court-martial. He received a bad conduct characterization of service.
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 contends that his bad conduct discharge should be upgraded because he was suffering from depression and was not allowed to seek counseling.
2. The applicant's records show that he received NJP for unauthorized absences and missing his unit movement. He also was convicted by a special court-martial for AWOL and use of cocaine.
3. 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. His contention could have been raised and conclusively adjudicated in the court-martial/appellate process.
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 applicants 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.
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