IN THE CASE OF:
BOARD DATE: 28 July 2015
DOCKET NUMBER: AR20140021574
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 upgrade of his bad conduct discharge (BCD) to an honorable discharge.
2. The applicant states his constitutional rights were violated when he was picked up by the military police and placed in handcuffs to be taken to a lineup. The victim was picked up in the same car and saw the applicant in handcuffs. He was placed in the lineup and picked out by the victim. He was not given a fair chance because the victim had seen him right before the lineup. He was innocent of any crime against the victim. His BCD should be upgraded because he was not guilty of the crime and an unjust blemish on his career should be removed. Additionally, he would receive the pay that was denied due to this injustice.
3. The applicant did not provide any additional supporting documentation.
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 13 July 1977. He held military occupational specialty 11H (Heavy Anti-Armor Weapons Crewman).
3. A general court-martial convicted him on 26 May 1981, in accordance with his plea, of one charge of indecent assault. The court sentenced him to a dishonorable discharge, confinement for three years, forfeiture of all pay and allowances, and reduction to pay grade E-1.
4. The convening authority approved only so much of the sentence as provides for reduction to pay grade E-1, a BCD, forfeiture of all pay and allowances, and confinement for two years.
5. General Court-Martial Orders Number 811, Headquarters, U. S. Disciplinary Barracks, dated 1 December 1981, announced the sentence was affirmed. The provisions of Article 71(c) having been complied with, the sentence was to be duly executed.
6. The applicant was discharged on 7 January 1982 with a BCD. He had completed 3 years, 4 months, and 22 days of net active service.
7. Army Regulation 635-200 (Personnel Separations Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.
a. Paragraph 11-2 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge. It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.
b. 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 members 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 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.
8. 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. His trial by court-martial was warranted by the gravity of the offense charged. The conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.
2. He did not provide any evidence to substantiate any of his assertions.
3. In view of the foregoing, there is an insufficient evidentiary basis for granting his 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) AR20100010650
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20140021574
4
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2010 | 20100007505
One night he became sick and desperate for drugs and committed a crime for which he was sentenced to 2 years in confinement and a DD. 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. The applicant now contends he relapsed, he was addicted, and desperate for drugs, and he committed the offenses for which he was convicted.
ARMY | BCMR | CY2011 | 20110004595
The applicant appealed his conviction; however, on 25 February 1982, the U.S. Army Court of Military Review affirmed the findings and sentence. The applicant's request that his discharge be upgraded because he was wrongfully charged and convicted was carefully considered; however, there is insufficient evidence to support this request. His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct...
ARMY | BCMR | CY2011 | 20110019751
IN THE CASE OF: BOARD DATE: 10 April 2012 DOCKET NUMBER: AR20110019751 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests his bad conduct discharge be upgraded to an honorable or a general discharge. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.
ARMY | BCMR | CY2014 | AR20140009921
The applicant requests, in effect, an upgrade of his bad conduct discharge (BCD) to a general, under honorable conditions discharge. 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. The evidence of record shows the applicant was convicted by a GCM and he received a BCD.
ARMY | BCMR | CY2009 | 20090011660
Application for correction of military records (with supporting documents provided, if any). On 17 September 1985, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence determined that he had been properly and equitably discharged, and it voted to deny his request for a change to the characterization of his service and/or to the reason of his separation. There is no available evidence in his military record...
ARMY | BCMR | CY2012 | 20120005522
This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants 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. 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. Further, the available evidence confirms the applicant had an extensive disciplinary...
ARMY | BCMR | CY2014 | 20140003895
Application for correction of military records (with supporting documents provided, if any). Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board is not empowered to set aside a conviction. The applicant contends that his military records should be corrected by changing his BCD to uncharacterized and changing the reason for his separation because his crime was an isolated incident and he has an otherwise clean record.
ARMY | BCMR | CY2014 | 20140001776
IN THE CASE OF: BOARD DATE: 30 September 2014 DOCKET NUMBER: AR20140001776 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. Conviction and discharge were effected in accordance with applicable law and regulations, and the final discharge appropriately characterizes the misconduct for which the applicant was convicted.
ARMY | BCMR | CY2012 | 20120010312
The applicant's military record shows he enlisted in the Regular Army, in pay grade E-1, on 30 January 1968, for 2 years. Accordingly, on 25 March 1971, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 11, as a result of court-martial, in pay grade E-1. On 25 March 1971, he was discharged pursuant to the sentence of his general court-martial and he was issued a BCD after the sentence was affirmed.
ARMY | BCMR | CY2013 | 20130015109
His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of court-martial in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) with a bad conduct discharge. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.