BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140010668 


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 his bad conduct discharge be upgraded to honorable.

2.  The applicant states his discharge should be upgraded to honorable.  At the time of his service, he had a very prejudiced first sergeant (1SG).  He wrote a check for a car and his direct deposit didn’t hit his account in time so the check bounced.  The next thing he knew he was being court-martialed.

3.  The applicant provides no additional evidence.

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 7 September 1982.  He completed basic training and advanced individual training and on 15 February 1983 he was assigned to the 642nd Engineer Company, Fort Devens, MA.

3.  On 14 June 1983, 28 July 1983, and 31 January 1984, the Fort Devens Post Exchange (PX) notified his commander that the applicant had written checks with insufficient funds on three occasions and a total of six different checks.

4.  On 31 January 1984, he was counseled by his 1SG on his failure to pay his just debts owed to the telephone company, electric company, and Radio Shack.  His 1SG counseled him that Soldiers were expected to pay their just debts in a timely manner and failure to do so could result in punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), reduction in grade, or referral to a court-martial.

5.  Between October and December 1984, he was counseled by his immediate supervisor on several occasions for his unsatisfactory duty performance, leaving his place of duty without permission, and for failing to report to his appointed place of duty at the required time.

6.  On 28 January 1985, he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for one specification each of uttering a check to a moving company with insufficient funds and for failing to pay a just debt to another Soldier for the purchase of a motorcycle.

7.  On 4 March 1985, a Bar to Reenlistment Certificate was placed against him based on his adverse counseling and for writing checks to the PX with insufficient funds on three different occasions.

8.  On 31 July 1985, he was convicted by a special court-martial of:

* four specifications each of wrongfully writing checks with insufficient funds 
* three specifications each of wrongfully appropriating monies

9.  He was sentenced to reduction to private/E-1, confinement for 1 month, and to a bad conduct discharge.

10.  He was incarcerated at Fort Devens, MA.  On 16 September 1985, he was placed on excess leave while awaiting the appellate review.

11.  Special Court-Martial Order Number 12, dated 22 July 1986, issued by Headquarters, Fort Devens, shows the applicant's sentence had been affirmed and having been complied with, the convening authority ordered his bad conduct discharge executed.  On 4 August 1986, he was accordingly discharged from the Army.

12.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3, by reason of court-martial, with a bad conduct discharge.  He completed 3 years, 10 months, and 6 days of net active service of which 323 days was excess leave.  He had 22 days of lost time due to being in confinement.

13.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  The version of the regulation in effect at the time, prescribed the policies and procedures for separating members with a bad conduct discharge.  It stipulated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

15.  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.

16.  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.

17.  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 evidence of record confirms the applicant's trial by a special court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  Notwithstanding his contention that his 1SG was prejudiced against him, there is no available evidence that supports this contention.  In addition, he could have raised the claim of prejudice as an issue to be considered in mitigation during the court-martial and/or appellate process.

2.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  After a review of his record of service, it is clear his service did not meet the criteria for an honorable discharge or any other characterization of service then the one he received.  Therefore, he is not entitled to the 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 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)                                         AR20140010668





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ABCMR Record of Proceedings (cont)                                         AR20140010668



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