IN THE CASE OF:  	  

		BOARD DATE:  23 September 2014	  

		DOCKET NUMBER:  AR20140001900 


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, in effect, the type of discharge he received is too harsh.

3.  The applicant provides:

* Department of Veterans Affairs Statement of Service (25 September 2000)
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 25 February 1987 (two copies)
* Report of Medical Examination, dated 5 September 1986
* DA Form 2-1 (Personnel Qualification Record – Part II)
* Three undated letters of support (two from friends and one from his wife)

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 22 November 1983.  He completed training as a combat engineer.

3.  The applicant accepted nonjudicial punishment on 12 December 1985 for failure to obey a lawful order given by a noncommissioned officer to clean the latrine.

4.  On 9 July 1986, the applicant was convicted by a general court-martial of larceny of various items of stereo equipment of a value in excess of $100.00 and of three specifications of failure to repair.  He was sentenced to the following:

* Bad conduct discharge
* Confinement for 10 months
* Reduction in pay grade
* Forfeiture of pay

5.  The convening authority approved the sentence as adjudged and except for that portion pertaining to his bad conduct discharge, the convening authority ordered the sentence executed.

6.  The U.S. Army Court of Military Review held the findings of guilty and the sentence as approved by the convening authority correct in law and fact, and affirmed the findings of guilty and the sentence.

7.  General Court-Martial Order Number 115, issued by the U.S. Army Correctional Activity, Fort Riley, Kansas, dated 11 February 1987, noting that the sentence had been finally affirmed, ordered the bad conduct discharge executed.

8.  On 25 February 1987, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of a duly reviewed and affirmed general court-martial conviction.  He had completed 2 years, 6 months, and 29 days of net active service this period.  He received a bad conduct discharge.

9.  The applicant provides three letters of support, two from friends and one from his wife.  They all attest to his good character and post-service conduct.

10.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that 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 modify the severity of the punishment imposed.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-11 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence duly executed.

   b.  Paragraph 3-7a states 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 states 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 was convicted by a general court-martial of larceny and three specifications of failure to repair.  He was discharged as a result of a duly reviewed and affirmed general court-martial conviction.  He has not provided any evidence to show the type of discharge he received was in error, unjust, or too harsh.  Therefore, the bad conduct discharge he received appropriately characterized his service.

2.  His supporting statements have been considered.  However, they are not sufficiently mitigating to warrant the requested relief. 

3.  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 applicant's undistinguished record of service and 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)                                         AR20140001900



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ABCMR Record of Proceedings (cont)                                         AR20140001900



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