IN THE CASE OF:
BOARD DATE: 8 January 2015
DOCKET NUMBER: AR20140008591
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 that his bad conduct discharge (BCD) be upgraded to a more favorable discharge.
2. The applicant offers no commentary as to why his discharge should be upgraded.
3. The applicant provides copies of documents relating to his character which consists of character references, letters of appreciation relating to his performance as a Certified Nurse Assistant, documents related to training in his profession and performance evaluations, and his DD Form 214.
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 1 December 1975 for a period of 3 years, training as a stock control and accounting specialist, and assignment to Europe. He completed his basic training at Fort Leonard Wood, Missouri and his advanced individual training at Fort Lee, Virginia before being transferred to Germany on 14 May 1976.
3. His records show that during the period from 28 September 1977 to
27 January 1978, nonjudicial punishment was imposed against him on three occasions for multiple offenses of failure to go to his place of duty, breaking into a wall locker, theft of a camera, and making a false official statement.
4. On 30 May 1978, he was convicted pursuant to his pleas by a general court-martial of two specifications of stealing purses belonging to two German Nationals, writing fraudulent checks, unlawful possession of drug paraphernalia, and unlawful possession of heroin. He was sentenced to a BCD, confinement at hard labor for 8 months, a forfeiture of all pay and allowances, and reduction to the pay grade of E-1. He was transferred to Fort Leavenworth, Kansas to serve his confinement.
5. On 3 October 1978, the U.S. Army Court of Military Appeals affirmed the finding and sentence as approved by the convening authority.
6. On 8 May 1979, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction. He completed 2 years, 9 months, and 9 days of total active service and had 239 days of lost time due to being in confinement.
7. 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.
8. Army Regulation 635-200 (Enlisted Personnel Separations), 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.
9. Army Regulation 635-200, 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted. However, they are not sufficiently mitigating to warrant relief when compared to the serious and repeated nature of his misconduct.
2. Trial by court-martial was warranted by the gravity of the offenses 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.
3. Accordingly, his punishment was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.
4. Accordingly, there does not appear to be any basis to upgrade his discharge.
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) AR20140008591
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ABCMR Record of Proceedings (cont) AR20140008591
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