IN THE CASE OF:
BOARD DATE: 20 November 2014
DOCKET NUMBER: AR20140006469
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 does not make any additional comments.
3. The applicant provides a letter of support.
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's record shows he enlisted in the Regular Army on
1 November 2000. His records show he was awarded military occupational specialty 92A.
3. Records show that the complete facts and circumstances of the applicants discharge are not available for review with this case. There are however, sufficient records available to make a fair and impartial decision in this case.
4. General Court-Martial Order Number 171, U.S. Field Artillery Center, dated
27 October 2005, sentenced the applicant to reduction to the grade
private/E-1,confinement for 30 months, and a Bad Conduct Discharge.
5. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged from the Regular Army on
26 April 2006 under the provisions of Army Regulation 635-200, chapter 3, due to court-martial. He received a bad conduct characterization of service. The
DD Form 214 confirms he completed 2 years, 11 months, and 29 days of creditable active service.
6. The applicant provides a letter of support which states, in effect, that the applicant is an upstanding citizen.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge. It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.
a. 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.
b. 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. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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's request for an upgrade of his Bad Conduct Discharge was found to be without merit.
2. In the absence of evidence to the contrary, it is presumed that the court-martial proceedings were conducted in accordance with law and regulations applicable at the time.
3. The applicant offered no evidence or argument in support of his request for an upgrade.
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.
ABCMR Record of Proceedings (cont) AR20140006469
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ABCMR Record of Proceedings (cont) AR20140006469
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