IN THE CASE OF:	  

		BOARD DATE:	  5 March 2015

		DOCKET NUMBER:  AR20140010409 


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 general discharge.

2.  The applicant offers no basis or explanation for his request. 

3.  The applicant provides a copy of 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 enlisted in the Regular Army on 21 November 1984 for a period of 3 years and training as a material storage and handling specialist.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training at Fort Lee, Virginia and was transferred to Fort Bliss, Texas on 1 April 1985 for his first and only assignment.

3.  On 20 July 1985, nonjudicial punishment (NJP) was imposed against the applicant for driving a privately owned vehicle (POV) while intoxicated.

4.  On 5 September 1985, NJP was imposed against him for disobeying a lawful order from a superior officer by driving his POV on post when his driving privileges were revoked.

5.  On 30 October 1985, the applicant’s commander notified him that he was initiating a bar to reenlistment against him based on his disciplinary record and his failure to respond to repeated counseling sessions regarding his substandard duty performance and appearance. 

6.  On 5 December 1985, NJP was again imposed against him for disobeying a lawful order from a superior officer by driving his POV on post when his driving privileges were revoked.

7.  The applicant did not submit matters in his own behalf and his battalion commander approved the bar to reenlistment.   

8.  On 18 April 1986, the applicant was convicted pursuant to his pleas by a special court-martial of conspiring to commit larceny and committing larceny of $600.00 belonging to a noncommissioned officer.  He was sentenced to confinement for 90 days and a BCD.

9.  On 23 May 1986, orders were published by Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Texas which announced that the applicant’s sentence as approved by the convening authority had been affirmed pursuant to Article 86 and directed that his BCD be duly executed. 

10.  On 23 April 1987, the applicant was discharged pursuant to a duly-affirmed court-martial conviction.  He had served 2 years, 3 months and 11 days of active service and he had 52 days of lost time due to confinement.  

11.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 
15-year statute of limitations.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for the separation of enlisted personnel. 

   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.

   c.  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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with the applicable law and regulation and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  The type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.

2.  The applicant’s did not provide a statement or supporting evidence with his application.  Therefore, he has offered no mitigating factors that would warrant relief when compared to the serious nature of his offenses and his otherwise undistinguished record of service.

3.  Accordingly, his sentence 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.  



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)                                         AR20140010409



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ABCMR Record of Proceedings (cont)                                         AR20140010409



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