IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140014753 


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, in effect, an upgrade of his bad conduct discharge (BCD) to an honorable discharge (HD).

2.  The applicant states:

* he was never a bad Soldier and he wants to be able to say he was honorably discharged
* he never contested his discharge and accepted it for what it was
* he was very young at the time and he believes that he was tricked into admitting guilt in order to get a deal
* he was told that if he pled guilty he would not receive a BCD
* he was also told that he could have a BCD upgraded after a few years
* he has never been in any trouble and he has been a good citizen
* he would like to have his discharge upgraded in order to secure better employment 

3.  The applicant does not provide any additional information. 

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 28 July 1982 at the age of 18.  After completing initial entry training, he was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  His record documents no acts of valor or significant achievement.

3.  Special Court-Martial (SPCM) Order Number 23, dated 7 June 1985, found him guilty of:

     a.  conspiracy to malinger, on 22 November 1984;  

     b.  missing movement through design, on 22 November 1984;

     c.  malingering by breaking his arm, on 22 November 1984; and

     d.  disobeying a lawful order, on 26 January 1985.

4.  His sentence was reduction to private (PV1)/E-1, forfeiture of $300.00 for two months, confinement for two months, and a BCD.  The sentence was approved and except for the part of the sentence extending to a BCD, was executed.

5.  SPCM Order Number 12, dated 28 March 1968 shows, in pertinent part, that his sentence was finally affirmed and the BCD was ordered duly executed.

6.  His DD Form 214 shows, on 7 May 1986, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3, by reason of court-martial.  This form further lists his character of service as "bad conduct."

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

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 

   a.  Paragraph 3-11 (BCD) states 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 ordered duly executed.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

	b.  Paragraph 3-7a states 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 states that a general discharge (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.  

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was young when his misconduct occurred is noted; however, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

2.  The U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in his or hers discharge.  The ABCMR will warrant changes if it is determined the characterization of service or the reason for discharge were either or both improper or inequitable.

3.  His employment concerns were noted; however, the ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for programs.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.

4.  In this case, the evidence of record reveals no error or injustice related to his court-martial and/or his subsequent discharge.  His record reveals no acts of valor or significant achievement and his overall record of service is not sufficiently meritorious to support an upgrade of his BCD that resulted from his court-martial conviction.  Conviction and discharge were effected in accordance with applicable law and regulations.  

5.  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.  Given his undistinguished record of service and the serious nature of the offenses for which he was charged and convicted it would not be appropriate to grant clemency 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)                                         AR20140014753



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ABCMR Record of Proceedings (cont)                                         AR20140014753



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