IN THE CASE OF:	  

		BOARD DATE:	  4 February 2015

		DOCKET NUMBER:  AR20140009290 


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 states since his discharge in 1988, he has not committed any crimes pertaining to what he was convicted of.  Since 2008, he has worked for a company that deals with the military.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 records show he enlisted in the Regular Army on 8 March 1984 and he also reenlisted on 30 January 1987.  He was trained in and held military occupational specialty 12B (Combat Engineer). 

3.  He served in Germany from 28 June 1984 to 23 December 1985.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Army Good Conduct Medal, Army Achievement Medal, Expert Marksman Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship Qualification Badge with Grenade Bar. 

4.  On 8 October 1987, he was arraigned and tried at a general court-martial at Headquarters, 101st Airborne Division for violating the Uniform Code of Military Justice as follows: 

* Charge I, one specification of larceny of personal property
* Charge II, one specification of larceny of various equipment
* Charge III, one specification of unlawfully breaking in and entering a dwelling with intent to commit larceny

5.  Consistent with his pleas to the charges and their specifications, the court found him guilty of all charges and specifications.  On 30 October 1987, the convening authority approved only so much of the sentence as provided for bad conduct discharge, confinement for 18 months, forfeiture of $500.00 pay per month for 18 months, and reduction to the lowest enlisted grade and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  On 15 January 1988, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 

7.  There is no indication he petitioned the U.S. Court of Military Appeals for a grant of review with respect to any matters of law. 

8.  Headquarters, U.S. Army Correctional Facility, Fort Riley, KS, General Court-Martial Order Number 697, dated 20 October 1988, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

9.  The applicant was discharged on 22 November 1988.  His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of court-martial in accordance with Army Regulation 635-200 (Enlisted Personnel Separations), chapter 3, with a bad conduct discharge.  This form further shows he completed 3 years, 7 months and 1 day of creditable active military service with lost time from 8 October 1987 to 21 November 1988. 

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.

11.  Army Regulation 635-200, 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.

12.  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 trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence was ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

3.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this 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.

4.  His service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.  He is not entitled to an upgrade of his bad conduct 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)                                         AR20140009290





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ABCMR Record of Proceedings (cont)                                         AR20140009290



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