IN THE CASE OF:	  

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140018826 


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 a general discharge.

2.  The applicant states:

* he completed his term of service and signed out from his unit in August 1987 and returned to American Samoa
* in October 1987 he was called by his company commander to return
* he voluntarily paid for his fare and returned to his unit at Fort Riley, KS
* the next thing he knew he was being court-martialed and separated from his unit again, but this time with a bad conduct discharge

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* correspondence from a Member of Congress, dated 11 September 2014

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 14 August 1984 for 3 years.  He completed training and was awarded military occupational specialty 11B (infantryman).

3.  In September 1985, nonjudicial punishment (NJP) was imposed against him for assaulting a staff sergeant.

4.  On 13 August 1987 in accordance with his pleas, he was convicted by a general court-martial of assaulting a specialist four and being absent without leave (AWOL) from 19 June 1987 to 14 July 1987.  He was sentenced to reduction to E-1, forfeiture of $426.00 pay per month for 2 months, confinement for 2 months, and a bad conduct discharge.  On 1 October 1987, the convening authority approved the sentence.

5.  On 24 November 1987, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

6.  On 12 April 1988, the convening authority ordered the bad conduct discharge duly executed.

7.  He was issued a bad conduct discharge on 26 April 1988 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial.  He completed 3 years, 5 months, and 24 days of creditable active service and accrued 80 days of lost time.

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

	a.  Chapter 3 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	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.

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.  A trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  His record of service included one NJP for assault, one general court-martial conviction for assault and being AWOL, and 80 days of time lost.  As a result, his record of service was not satisfactory.  Therefore, the applicant's service is insufficiently meritorious to warrant a general discharge.

3.  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 applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

4.  In view of the foregoing, there is no 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)                                         AR20140018826



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ABCMR Record of Proceedings (cont)                                         AR20140018826



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