IN THE CASE OF:	  

		BOARD DATE:	  12 February 2015

		DOCKET NUMBER:  AR20140011467 


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 (BCD).

2.  He states, in effect, that he has changed and he would like to move forward.  He offers that he served his country and he was involved in one incident.  He concludes that he now has a family and he and his wife try to set positive examples for both their children.

3.  He provides a letter from the Disabled American Veterans. 

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 27 November 1984.  

3.  His disciplinary history includes acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on:

   a.  19 September 1985, for disobeying a lawful order and being disrespectful toward a noncommissioned officer on 11 September 1985.  His punishment consisted of reduction to pay grade E-1 (suspended until 19 December 1985) and restriction for 14 days.  
   
   b.  4 June 1986, for breaking restriction.  His punishment consisted of reduction to pay grade E-2 (suspended until 3 September 1986), a forfeiture of $167.00 pay, and extra duty and restriction for 14 days.  

   c.  30 July 1986, the above suspension was vacated.  The vacation was based on his dereliction of duty on 24 July 1986. 
   
4.  On 17 August 1987, he was convicted by a special court-martial of:  conspiracy to commit assault, burglary of a dwelling house with the intent to commit assault, and assault consummated by a battery.  The court sentenced him to reduction to the grade of E-1, confinement for 5 months, and a BCD.  The convening authority approved only so much of the sentence as provided for reduction to the pay grade of E-1, confinement for 3 months, and a BCD.  On 
25 February 1988, his sentence was affirmed and the BCD ordered executed.

5.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD on 11 April 1988.  He was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, "as a result of court-martial."  He completed 3 years and 2 months of creditable active service with the period 17 August to
2 November 1987 listed as lost time.
	
6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 establishes policy and procedures for separating members with a dishonorable discharge or BCD.  It provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence must be ordered duly executed.

	b.  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.

	c.  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.

7.  Court-martial convictions stand as adjudged or as 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's contention, in effect, that his discharge should be upgraded based on the passage of time was considered.  However, there are no provisions in Army regulations for upgrading a discharge after a period of time has elapsed. The applicant must provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances that warrant an upgrade.  Therefore, his contention is not sufficient as a basis to upgrade his discharge.

2.  The evidence of record shows he was convicted by a special court-martial that was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  He was sentenced to a BCD pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

4.  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.  While there is a record of good service, it is presumed that this service was taken into consideration at the time of sentencing.  Therefore, given his offenses and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20140011467



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ABCMR Record of Proceedings (cont)                                         AR20140011467



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