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		IN THE CASE OF:	  

		BOARD DATE:	14 October 2014

		DOCKET NUMBER:  AR20140004301 


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 served 8 years in the Army
* he regrets that he didn't finish the way he started
* he learned so many useful trades, especially cooking
* he has been out of the military for 26 years
* he has had good jobs
* he has been a lead cook and chef
* he wants a discharge upgrade so he can get a better job

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 16 June 1977 for 3 years.  He completed his training and he was awarded military occupational specialty 94B (food service specialist).  He remained on active duty through continuous reenlistments and he attained the rank of sergeant on 1 October 1985. On 
1 October 1985, he reenlisted for 3 years. 

3.  On 10 December 1987, he was convicted by a general court-martial of violating three lawful general regulations (purchasing in excess of authorized limits, failing to show proper disposition of duty-free goods, and transferring or disposing of duty-free and tax-free goods).  He was sentenced to reduction to pay grade E-1, forfeiture of pay per month for 3 months, confinement for 10 months, and a bad conduct discharge.  On 29 January 1988, the convening authority approved the sentence, but suspended confinement in excess of 
9 months for one year.

4.  On 28 February 1989, the U.S. Army Court of Military Review set aside the finding of guilty to specification 2 of the charge (failing to show proper disposition of duty-free goods) and dismissed that specification and affirmed the remaining findings of guilty and the sentence.

5.  On 5 June 1989, the convening authority ordered the bad conduct discharge duly executed.

6.  He was issued a bad conduct discharge on 12 June 1989 under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), as a result of a court-martial.  He completed a total of 11 years, 4 months, and 21 days of creditable active service with 216 days of time lost.

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

	a.  Chapter 3 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a 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.

8.  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 wants his bad conduct discharge upgraded so he can get a better job.  However, a discharge is not changed for the purpose of enhancing employment opportunities. 

2.  A trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  His prior honorable service was noted.  However, his record of service during his last enlistment included one general court-martial conviction and 216 days of time lost.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's service is insufficiently meritorious to warrant an honorable or a general discharge.






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 applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140004301





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ABCMR Record of Proceedings (cont)                                         AR20140004301



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