IN THE CASE OF:    

		BOARD DATE:  24 February 2015	  

		DOCKET NUMBER:  AR20140011898 


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 (BCD) be upgraded to general discharge (GD) under honorable conditions.

2.  The applicant states he was young and befriended the wrong people.  He made a stupid mistake.  Now, 31 years later, he would appreciate an upgrade of his discharge.

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 16 September 1982, completed training, and was awarded the military occupational specialty 16R (Air Defense Artillery Short Range Gunnery Crewman).

3.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for 16 days of absence without leave (AWOL) from 7 to 22 February 1983.  

4.  On 11 May 1983, the applicant appeared before a general court-martial on the charges of one day AWOL and theft of currency and a money order in excess of $100.00 from a fellow Soldier.  The Military Judge granted the defense request to dismiss the first charge.  In accordance with his plea, the applicant was found guilty on the larceny charge.  His sentence included a reduction to pay grade 
E-1, total forfeiture of all pay and allowances, confinement for seven months, and a BCD.

5.  On 17 June 1983 the convening authority approved the findings and sentence with issuance of a punitive discharge.  His file was forwarded to the United States Court of Military Appeals.

6.  The applicant served his period of confinement and was placed on involuntary excess leave effective 5 October 1983, pending final appellate review. 

7.  Headquarters, U.S. Army Correctional Activity Special Orders Number 195-4, dated 7 October 1983, indicates that the sentence had been affirmed pursuant to Article 66 of the Uniform Code of Military Justice.  It states, "The provisions of Article 771(c) having been complied with, the sentence will be duly executed.  That portion of the sentence pertaining to confinement has been served."  

8.  The applicant was discharged on 12 October 1983 with a BCD.  He had 6 months and 14 days of creditable service with 203 days of lost time.

9.  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.

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable discharge or BCD) pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  It also provides that a GD is a separation under honorable conditions issued to a Soldier whose military record is satisfactory but not so meritorious as to warrant an honorable discharge. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant has submitted neither probative evidence nor convincing argument in support of his request.

2.  The mere passage of time is insufficient in and of itself to warrant a change of the applicant's discharge, especially in light of the fact that his military record is devoid of significant service.

3.  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.  Absent any mitigating factors, the type of discharge directed and the reasons therefore 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)                                         AR20140011898



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ABCMR Record of Proceedings (cont)                                         AR20140011898



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