IN THE CASE OF:
BOARD DATE: 19 May 2015
DOCKET NUMBER: AR20140017128
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) to an honorable discharge.
2. He states he:
* believes he deserves an upgrade
* did no wrong
* did time for something that he did not do and it is over
3. He provides a:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Bad Conduct Discharge (BCD) Certificate
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 25 July 1978.
3. The applicant's record contains Special Court-Martial (SPCM) Order Number 38, dated 3 April 1980, which shows he pled and was found guilty of:
a. violating Article 121 of the Uniform Code of Military Justice (UCMJ) by wrongfully appropriating a television valued at $260.00 on 11 September 1979; and
b. violating Article 130 of the UCMJ by unlawfully entering a room, which was the military property of the U.S. and being utilized as a dwelling by a Soldier, with the intent of committing a criminal offense on 11 September 1979.
4. The applicant was sentenced to reduction to private (PV1)/E-1, a forfeiture of pay per month for 3 months, confinement for a period of three months, and the issuance of a BCD. The sentence was approved and, except for the part of the sentence extending to a BCD, was executed.
5. The applicant's record contains a copy of SPCM Order Number 262, dated
25 September 1980, which shows, in pertinent part, the applicant's sentence was finally affirmed and the BCD was ordered duly executed.
6. The applicant's DD Form 214 shows he was discharged on 14 October 1980 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 11-2, by reason of court-martial. This form further lists the applicant's character of service as "bad conduct." He completed 2 years and 9 days of net active service this period with 72 days of lost time.
7. He submitted a BCD Certificate which shows he was discharged from the U.S. Army on 14 October 1980.
8. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.
a. Paragraph 11-2 of this regulation states 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 ordered duly executed.
b. Paragraph 3-7a states 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 states 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.
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 trial by court-martial was warranted by the gravity of the offenses charged. The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.
2. His service record shows he was convicted by an SPCM. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. There is no evidence that would support clemency in this case. Therefore, there is no basis for granting 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) AR20140017128
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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