IN THE CASE OF:
BOARD DATE: 18 November 2014
DOCKET NUMBER: AR20140006142
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 when he was assigned to duty in Korea his unit was deeply involved in black market activities, including everyone from the first sergeant down. He believes his discharge was used as an example to intimidate others. He was the first person charged in the black market scheme and the others who were involved received either early retirement or discharge. He has not been in any major trouble since his discharge. He has married and has raised three sons and a daughter. He believes he has become a model citizen within his community.
3. The applicant did not provide any supporting documentation.
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 October 1985. He held military occupational specialty 54B (Chemical Operations Specialist).
3. A general court-martial convicted him on 11 August 1987, in accordance with his pleas, of two specifications of one charge of violating a lawful general regulation. The court sentenced him to forfeiture of all pay and allowances, confinement for 13 months, and a BCD.
4. The convening authority approved the sentence and, except for the BCD, ordered it executed.
5. The U.S. Army Court of Military Review dismissed one specification. The remaining finding of guilty was affirmed. The BCD, confinement for 12 months, and forfeiture of $438 pay per month for 12 months were affirmed.
6. The applicant was discharged on 20 April 1989 with a BCD, after completing 2 years, 8 months, and 15 days of net active service with time lost from 9 July 1987 to 17 April 1988.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time stipulated the following:
a. An honorable discharge is a separation from the Army 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 meets 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.
b. 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.
c. An enlisted person will receive a BCD pursuant only to an approved sentence of a court-martial imposing a BCD. The appellate review must be completed and the affirmed sentence ordered duly executed.
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. His trial by court-martial was warranted by the gravity of the offense charged. The conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.
2. He did not provide any evidence to substantiate any of his assertions.
3. In view of the foregoing, his 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 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) AR20100010650
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20140006142
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2009 | 20090021416
Application for correction of military records (with supporting documents provided, if any). The applicant requests upgrade of his bad conduct discharge (BCD) to a general discharge (GD). The applicant was discharged with a BCD on 12 July 1988.
ARMY | BCMR | CY2009 | 20090013914
The applicant requests that his bad conduct discharge be upgraded to an honorable discharge. 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. The applicant contends his bad conduct discharge should be upgraded to an honorable discharge.
ARMY | BCMR | CY2014 | 20140019002
Application for correction of military records (with supporting documents provided, if any). The applicant requests correction of his DD Form 214 (Report of Separation from the Armed Forces of the United States) to upgrade his character of separation from bad conduct to honorable. Special Court Martial Order Number 3697, issued by the Department of the Army, Officer of the Judge Advocate General, Board of Review, Washington, DC, on 7 September 1951, decided that, with respect to the...
ARMY | BCMR | CY2014 | 20140014724
The applicant requests upgrade of his bad conduct discharge (BCD) to an honorable discharge. 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. His defense counsel offered in her closing statement on sentencing that * the applicant's problems originated because the applicant was not...
ARMY | BCMR | CY2014 | 20140012206
The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Separations), paragraph 3-11, by reason of court-martial, with a BCD. General Court-Martial Order Number 641, issued by the U.S. Army Correctional Activity, Fort Riley, KS, dated 9 October 1990, states the applicant's sentence to a BCD, confinement for 18 months, and a forfeiture of $600.00 pay for 18...
ARMY | BCMR | CY2010 | 20100012133
IN THE CASE OF: BOARD DATE: 10 November 2010 DOCKET NUMBER: AR20100012133 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests upgrade of his bad conduct discharge (BCD) to a general discharge. The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.
ARMY | BCMR | CY2013 | 20130002144
The applicant requests the following: * an upgrade of his 1992 bad conduct discharge (BCD) to a general discharge based on his 10 years of service * correction to Item 12 (Date Entered AD (active duty) This Period) of his DD Form 214 (Certificate of Release or Discharge from AD), ending on 10 March 1992, to show 8 August 1976 2. Effective 1 October 1979, Army Regulation 635-5 was changed to reflect that the DD Form 214 would not be prepared for enlisted members discharged for immediate...
ARMY | BCMR | CY2008 | AR20080018160
The applicant requests, in effect, that his 1984 bad conduct discharge be upgraded to general, 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. The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.
ARMY | BCMR | CY2014 | 20140011467txt
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. The evidence of record shows he was convicted by a special court-martial that was warranted by the gravity of the offenses charged at the time. His conviction and discharge were effected in accordance with applicable laws and regulations...
ARMY | BCMR | CY2014 | 20140011467
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. The evidence of record shows he was convicted by a special court-martial that was warranted by the gravity of the offenses charged at the time. His conviction and discharge were effected in accordance with applicable laws and regulations...