IN THE CASE OF:	  

		BOARD DATE:	  8 January 2015

		DOCKET NUMBER:  AR20140007843 


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.  He also requests an appearance before the Board.

2.  The applicant states:

	a.  He has paid for his shortcomings that happened when he was younger and he would like to make a personal appearance to show he has become a productive member of society.

	b.  He feels his discharge is unjust because he served his time prior to being discharged and has paid his debt to the military and society.

	c.  He has never been in any trouble and has worked very hard to gain a good reputation and standing in the community.

	d.  He still suffers from the stigma in his mind although no one currently sees him as that young man who made one foolish mistake.  His records should reflect this.

3.  The applicant provides:

* six character-reference letters
* baptismal certificate
* two certificates of recognition

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 was born on 24 March 1957.  He enlisted in the Regular Army on 5 June 1975 for 3 years.  He completed training and was awarded military occupational specialty 36K (tactical wire operations specialist).

3.  In November 1977, nonjudicial punishment was imposed against him for disobeying a lawful order.

4.  On 20 July 1978, he was convicted by a special court-martial of larceny (stealing $360.00 from another Soldier).  He was sentenced to confinement at hard labor for 3 months, forfeiture of $150.00 pay per month for 3 months, reduction to E-1, and a bad conduct discharge.  On 10 August 1978, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 1 month, forfeiture of $150.00 pay per month for 1 month, and reduction to E-1.

5.  On 13 February 1979, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

6.  On 1 September 1982, the convening authority ordered the bad conduct discharge duly executed.

7.  He was issued a bad conduct discharge on 3 November 1982 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of a court-martial.  He completed a total of 7 years, 4 months, and 5 days of creditable active service with 24 days of lost time.

8.  In June 1988, the Army Discharge Review Board denied his request for a discharge upgrade.

9.  He provided six character-reference letters from his wife, daughter, friends, and pastor who attest:

* the applicant has been married for 36 years and has a daughter and son
* he is a changed man and well respected throughout his life
* he is a wonderful God-fearing, loving, caring, and compassionate human being
* he is an awesome father and extraordinary grandfather
* he is unbiased, organized and prepared, and self-motivated
* he has a positive attitude and is responsible and caring
* he has spiritual maturity and moral integrity
* he is honest and has been an active participant in Narcotics Anonymous for 18 years

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

	a.  Chapter 11, in effect at the time, stated a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or 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.

11.  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.

12.  Army Regulation 15-185 (ABCMR) governs operation of the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends he was a young man who made one foolish mistake, age is not a sufficiently mitigating factor.  He was 18 years old when he enlisted and successfully completed training.  He completed 2 years of service prior to his misconduct.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

2.  He contends he has become a valuable and productive member of society; however, good post-service conduct alone is not a basis for changing a service characterization.

3.  The character-reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

4.  A trial by court-martial was warranted by the gravity of the offense 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.

5.  His record of service included one nonjudicial punishment and one special court-martial conviction.  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.  The applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

6.  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.

7.  His request for a personal appearance hearing was also carefully considered.  However, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision.

8.  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 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)                                         AR20140007843



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ABCMR Record of Proceedings (cont)                                         AR20140007843



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