BOARD DATE:	  16 October 2014

		DOCKET NUMBER:  AR20140005046 


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 makes no statement but does indicate that he wants this upgrade in order to obtain health care.

3.  The applicant provides a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim).  However, other than his name, address, phone number, signature and social security number, it is blank.

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 30 September 1983, the applicant, enlisted in the Regular Army.  He completed his initial training as a cannon crewmember at Fort Sill, OK.

3.  On 1 August 1984, the applicant was advanced to private first class, pay grade E-3.

4.  On 8 February 1985, the applicant accepted NJP for being absent without leave (AWOL) from on or about 5 to 8 February 1985.  

5.  On 20 May 1985, the applicant departed Fort Sill, OK for duty in the Republic of Korea (ROK).

6.  On 20 June 1985, the applicant was assigned as a cannoneer with the 8th Battalion, 8th Field Artillery Regiment, 2nd Infantry Division.

7.  General Court-Martial Order Number 13, 2nd Infantry Division, dated 
31 March 1986 shows the applicant was convicted of violating:

   a.  Article 86 for being AWOL (three specifications) on or about:
   
* 3 September to 7 October 1985
* 13 to 23 October 1985
* 28 October to 10 December 1985
   
b.  Article 92 for violation of a lawful general regulation by:

* Wrongful possession and use of a ration control plate and identification card of another service member on 8 September 1985
* Wrongful possession and use of a ration control plate and identification card of another service member on 12 September 1985
* Wrongful possession and use of a ration control plate and identification card of another service member on 14 September 1985
* Wrongful possession and use of a ration control plate and identification card of another service member on 10 December 1985
* Wrongful purchase of duty free goods in quantities exceeding personal needs valued at about $10,000.00 from 1 September to 10 December 1985



8.  The applicant’s sentence was:

	a.  reduction to private, pay grade E-1;

	b.  a forfeiture of all pay and allowances for 15 months;

	c.  a bad conduct discharge.

9.  On 31 March 1986, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for 9 months, a total forfeiture of all pay and allowances, and reduction to pay grade E-1.  Except for the part of the sentence extending to a bad conduct discharge, it was ordered to be executed.

10.  On 22 May 1986, the U.S. Army Court of Military Review considered the entire record of the applicant's conviction and issues brought to it by him.  The court held the findings of guilty and the sentence as approved by the convening authority correct in law and fact and affirmed them as such.

11.  General Court-Martial Order Number 621, United States Army Correctional Activity, Fort Riley, KS, dated 26 August 1986, 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 dishonorable discharge was to be executed.

12.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged from the Regular Army on 
3 September 1986 under the provisions of Army Regulation 635-200, chapter 3, due to court-martial.  He received a bad conduct characterization of service.

13.  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, in effect, that his bad conduct discharge should be upgraded because he needs health care.

2.  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.

3.  The applicant's records show that he received NJP for an unauthorized absence.  He also was convicted for multiple periods of AWOL, wrongful possession and use of another Soldier’s ration control plate and identification card, and for excessive purchases of duty-free goods.

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 applicant’s 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.
ABCMR Record of Proceedings (cont)                                         AR20130022331



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ABCMR Record of Proceedings (cont)                                         AR20140005046



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