BOARD DATE: 11 December 2014
DOCKET NUMBER: AR20140008565
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 states that there is no error in his discharge. He made a bad judgment call and has learned from that mistake. He has stayed out of trouble and now wants a second chance. In the past he applied for a job and was embarrassed when he was asked if he was a veteran.
3. The applicant provides no additional 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. On 8 January 1985, the applicant enlisted in the Regular Army. He completed his initial training as an armor crewmember.
3. On 1 September 1986, the applicant was advanced to specialist four, pay grade E-4.
4. General Court-Martial Order Number 3, 4th Infantry Division, dated
7 January 1988 shows the applicant was convicted of violating Article 121, Uniform Code of Military Justice (UCMJ) for larceny (19 specifications) between 27 June and 13 July 1987. The applicants sentence was a reduction to private, pay grade E-1; forfeiture of all pay and allowances; confinement for 1 year; and
a bad conduct discharge.
5. On 7 January 1988, the convening authority approved the sentence. Except for the part of the sentence extending to a bad conduct discharge, it was ordered to be executed.
6. On 29 April 1988, 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 consolidated six specifications into three specifications; three specifications were set aside and dismissed. The remaining specifications were affirmed. The sentence was reassessed and affirmed.
7. General Court-Martial Order Number 554, United States Army Correctional Activity, Fort Riley, KS, dated 1 September 1988, announced the unexecuted portion of the approved sentence to confinement was remitted.
8. General Court-Martial Order Number 737, United States Army Correctional Activity, Fort Riley, KS, dated 31 October 1988, 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 bad conduct discharge was to be executed.
9. The applicant's DD Form 214 shows that he was discharged from the Regular Army on 14 November 1988 under the provisions of Army Regulation
635-200, chapter 3, due to court-martial. He received a bad conduct characterization of service.
10. 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 that his military records should be corrected by upgrading his bad conduct discharge because his mistakes were the result of bad judgment.
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 criminal conduct of multiple larcenies for which the applicant was convicted.
3. 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.
4. 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) AR20130022331
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