IN THE CASE OF:  	  

		BOARD DATE:  11 June 2015	  

		DOCKET NUMBER:  AR20140018473 


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 a general under honorable conditions discharge.

2.  The applicant stated a personal statement was attached to his application; however, one was not found and efforts to retrieve one from the applicant were unsuccessful.  

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 was born on 7 November 1960 and he enlisted in the Regular Army on 28 November 1978 at 18 years of age.  He completed training and he was awarded military occupational specialty 31M (Multichannel Communications Equipment Operator).  The highest rank/grade he attained while serving on active duty was specialist/E-4.  However, he held the rank/grade of private/E-1 at the time of his discharge.

3.  On 14 August 1980, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on 29 and  30 July 1980.

4.  On 19 October 1980, court-martial charges were preferred against the applicant for one specification of absenting himself from his organization on      19 September 1980.

5.  His record contains a Report of Mental Status Evaluation, issued on 2 July 1981, which indicates the applicant was cleared for administrative action deemed appropriate by his or her commander.

6.  His record contains Special Court-Martial Order Number 120, issued by Headquarters, Fort Carson and 4th Infantry Division (Mechanized), Fort Carson, CO, dated 24 August 1982, which shows he pled guilty and was found guilty of violating two specifications of Article 86 of the UCMJ for:

   a.  without authority, absenting himself from his unit for the period                 19 September 1980 to 1 July 1981 and

   b.  without authority, absenting himself from his unit for the period 6 July 1981 to 28 March 1982.

7.  On 4 June 1982, the following sentence was adjudged:  to be discharged from the service with a BCD; to be confined at hard labor for 3 months; and to be reduced to the grade of E-1. 

8.  His record contains Special Court-Martial Order Number 37, issued by Headquarters, Fort Carson and 4th Infantry Division (Mechanized), Fort Carson, CO, dated 19 February 1983, that states in a special court-martial case of the applicant, the sentence to a BCD, confinement at hard labor for 3 months, and reduction to the rank of private/E-1, adjudged on 4 June 1982, as promulgated in Special Court-Martial Order Number 120, this headquarters, dated 24 August 1982, not subsequently modified, has been affirmed.  The provisions of Article 71(c) having been complied with, the sentence will be duly executed.  The portion of the sentence pertaining to confinement has been served.

9.  His record contains a DD Form 214 that shows he was discharged on            3 March 1983 under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial with a BCD.  He completed 2 years, 6 months, and 1 day of creditable active service with time lost during the periods 19 September 1980 to 30 June 1981; 6 July 1981 to 27 March 1982; and 18 May to 18 August 1982.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 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 be completed and the affirmed sentence ordered duly executed.

11.  Army Regulation 635-200, 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.

12.  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 available evidence shows he was convicted by a special court-martial.  The conviction and discharge were effected in accordance with applicable laws and regulation.

2.  He was given a BCD pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

3.  The applicant refers to an attached personal statement: however, it was not resident with his application.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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.  Given the absence of any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is an 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 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)                                         AR20140018473





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ABCMR Record of Proceedings (cont)                                         AR20140018473



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