IN THE CASE OF:	  

		BOARD DATE:	  11 June 2015

		DOCKET NUMBER:  AR20140017587 


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 to an honorable discharge.

2.  The applicant states:

* he was misrepresented by counsel and given poor advice
* he wrongfully appeared before a court-martial for a crime he didn't commit
* Specialist Four (SP4) M____ owed him $100.00 resulting from a debt and apparently paid him from the money he took out of another Soldier's locker
* at the time he shared a barracks room with three other Soldiers, one of whom had his locker broken into, while SP4 M____ lived off post
* he maintained his innocence from the start and from the beginning told Internal Affairs investigators that he did not know who went into the Soldier's locker
* after his third interview with Internal Affairs, he informed them that SP4 M____ told him about going into the Soldier's locker and taking the money
* he did not know anything about the incident until SP4 M____ told him about it
* an argument ensued between himself and SP4 M____ over what the Internal Affairs investigators had said
* he was tired of being accused of a crime he didn't commit
* his three roommates were interviewed regarding SP4 M___'s actions
* SP4 M____ claimed in his investigative interview that he took the money, but that the applicant himself knew about it
* this is how he came to be involved in the theft
* SP4 M____ received his court martial a week before he himself went to court martial
* his lawyer informed him that since SP4 M____ had already been court-martialed for the crime, he did not have anything to worry about
* during the trial the prosecuting attorney began to speak of dishonorable discharge and separating him from the military, to which he told the judge he had nothing to do with the crime
* his lawyer asked for a break and spoke with him in the hallway, stating he would be sentenced to 20 years at Fort Leavenworth, KS, if he didn't go along with his plan
* he was given a dishonorable discharge and sent to prison for 6 months
* he was misrepresented by his lawyer and the court
* this wrongful conviction has greatly affected his life and he has suffered many setbacks as a result of being unable to serve his country as a career Soldier

3.  The applicant provides no additional evidence.

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 29 December 1980.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions for the following offenses:

* 2 September 1981 – for failing to go to his appointed place of duty, guard sentinel
* 22 October 1981 – for being disrespectful in language toward his superior noncommissioned officer
* 28 April 1982 – for disobeying a lawful order by allowing a visitor into the billets to enter and remain in a room utilized for private sleeping quarters

4.  On 16 July 1982, the applicant appeared before a special court-martial hearing in Butzbach, Federal Republic of Germany, where:

	a.  he was charged with one specification of violating Article 121 of the UCMJ by stealing $320.00 from another Soldier on or about 2 April 1982;

	b.  he was charged with two specifications of violating Article 134 of the UCMJ by unlawfully receiving $100.00 worth of currency which he knew to be stolen from another Soldier and for possession of 7 grams of marijuana; and

	c.  he was found guilty of stealing $320.00, not guilty of unlawfully receiving $100.00 worth of currency he knew to be stolen, and guilty of possession of marijuana.

5.  Headquarters, 3d Armored Division, Special Court-Martial Order Number 82, dated 13 August 1982, shows the court sentenced him to reduction to the rank/grade of private (PV1)/E-1, forfeiture of $367.00 pay per month for 3 months, confinement at hard labor for 75 days, and issuance of a bad conduct discharge.  The convening authority approved his sentence of reduction to the rank/grade of PV1/E-1, forfeiture of $367.00 pay per month for 3 months, confinement at hard labor for 75 days, and issuance of a bad conduct discharge.

6.  A Medical Examination for Separation – Statement of Option, dated 10 September 1982 and signed by the applicant states he understands he is not required to undergo a medical examination for separation, but may request a physical examination.  The applicant acknowledged he did not desire a separation medical examination.

7.  On 15 November 1982, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in his court-martial.  U.S. Army Correctional Activity Special Court-Martial Order Number 91, dated 7 March 1983, shows that after completion of all required post-trial and appellate reviews, the forfeiture of money, reduction in rank, and bad conduct discharge, as ordered by Headquarters, 3d Armored Division, Special Court-Martial Order Number 82, dated 13 August 1982, was ordered duly executed.

8.  On 12 May 1983, he was discharged accordingly.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial with a bad conduct discharge.  He completed a total of 2 years, 2 months, and 12 days of net active service since 29 December 1980 with 239 days of lost time due to military confinement.

9.  The applicant's records are void of documentation and he has not provided any showing he was not adequately represented by counsel, he was wrongfully charged, or any of his legal rights were violated during the court-martial process.  Additionally, he was found not guilty of accepting money he knew to be stolen, the crime he claims to have no involvement in.

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

	a.  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.

	b.  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.

	c.  Paragraph 3-10 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It provides that a Soldier will be given a bad conduct discharge 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.

11.  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 request for an upgrade of his bad conduct discharge to an honorable discharge was carefully considered but found to be without merit.  He was given a bad conduct discharge pursuant to an approved sentence by a special court-martial that was warranted by the gravity of the offenses with which he was charged.  He was not found guilty of the crime he claims to have had no involvement in and there is no evidence supporting this contention that he was not properly represented by counsel.  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.  The appellate review was completed and the affirmed sentence ordered duly executed.

2.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  In this case, the severity of the imposed sentence has been deemed appropriate.

3.  In view of the foregoing, there is insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20140017587



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ABCMR Record of Proceedings (cont)                                         AR20140017587



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