IN THE CASE OF:	  

		BOARD DATE:	  26 March 2015

		DOCKET NUMBER:  AR20140014386 


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 clemency in changing his bad conduct discharge (BCD) to an honorable discharge (HD).

2.  He states it has been 27 years since his infraction when he pushed another Soldier.  He was sent to a court-martial and received a BCD.  He was a stupid kid and is very sorry for his actions.  

3.  He 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.  On 22 July 1981, he enlisted in the Regular Army at 18 years of age.  He completed initial entry training and he was awarded military occupational specialty (MOS) 75F (Personnel Information System Management Specialist).  

3.  On 1 June 1982, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for drunk and disorderly conduct.

4.  On 18 July 1985, Headquarters, United States Army Training Center and Fort Dix, Fort Dix NJ issued Special Court-Martial (SPCM) Order Number 59.  The order shows that, pursuant to his pleas, the applicant was found guilty of violating a lawful general regulation by pushing a trainee, wrongful possession of marijuana, and drunk and disorderly conduct by striking a superior noncommissioned officer,.  He was sentenced to confinement for 3 months, reduction to private (PVT)/E-1, forfeitures of pay, and to be discharged from the service with a BCD.  However, pursuant to a pretrial agreement, the convening authority approved only so much of the sentence as provided for a BCD.

5.  The record shows that, prior to approval of the applicant's sentence, his defense counsel submitted a request for clemency, specifically requesting that the SPCM convening authority not approve a BCD.  His defense counsel argued, in effect, that the military judge erred by failing to find the charge of violating a lawful general regulations by pushing a trainee, and the charge of drunk and disorderly conduct multiplicious with the charge of striking a superior noncommissioned officer.

6.  On 7 May 1986, the United States Army Judiciary, Falls Church, VA issued a Notice to Withhold Final Action pending the defense counsel's petition for a grant of review by the U.S. Army Court of Military Review (ACMR). 

7.  On 24 February 1986, the ACMR responded to the defense counsel's petition and partially agreed to counsel's claim to the extent that the charge of drunk and disorderly conduct was multiplicious, for sentencing purposes, with striking a noncommissioned officer.  The ACMR found the remaining assignments of error to be without merit and affirmed the findings of guilty.

8.  On 1 December 1986, Headquarters, U.S. Army Armor Center, Fort Knox, KY, issued SPCM Order Number 223 ordering the execution of the affirmed sentence, and on 12 January 1987 he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personal), chapter 3, with a BCD in the rank/pay grade of private/E-1.  The applicant's DD Form 214 shows he had completed 5 years, 4 months, and 3 days of net active service.
9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-11 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 have been completed and the affirmed sentence ordered duly executed.

	b.  Paragraph 3-7a provides that an HD 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 GD 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his BCD to an HD or a GD.

2.  He was convicted of violating a lawful general regulation by pushing a trainee, wrongful possession of marijuana, and striking a superior noncommissioned officer.  His conviction and sentence by an SPCM were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  He was not given his BCD until after his conviction and sentence had been reviewed and affirmed by the ACMR.

3.  The ABCMR does not grant requests for upgrade of discharges solely due to the passage of time or age.   Each case is considered on its own merits and circumstances.  Although it has been over 27 years since the applicant's SPCM, he offers no extenuating or mitigating circumstances that would justify clemency in his case.

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.  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)                                         AR20130019532



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ABCMR Record of Proceedings (cont)                                         AR20140014386



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