IN THE CASE OF:	  

		BOARD DATE:	  27 August 2015

		DOCKET NUMBER:  AR20150000049 


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 was advised his discharge would be upgraded to a general discharge after 2 years if he had not gotten into any more trouble.

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 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 the cases 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.

2.  The applicant’s military records show he enlisted in the Regular Army, in pay grade E-1, on 19 September 1985, for 3 years.  He was awarded military occupational specialty 11B (infantryman).  He was advanced to pay grade E-2 on 19 March 1986.
3.  A DA Form 4187 (Personnel Action), dated 21 August 1986, shows a performance bar was requested to block his advancement to pay grade E-3 effective 1 September 1986.

4.  He was reported absent without leave (AWOL) on 14 February 1987 and was confined by military authorities on 18 February 1987.

5.  On 19 February 1987, he was convicted by a general court-martial of four specifications of larceny, totaling $1,150.00, on 5 and 6 June 1986.  He was sentenced to a reduction to pay grade E-1, a forfeiture of all pay and allowances, 15 months of confinement, and a bad conduct discharge.

6.  On 20 March 1987, the convening authority approved the sentence, forwarded the record of trial to the Judge Advocate General of the Army for review by a Court of Military Review, and ordered his placement in confinement for 12 months.

7.  On 20 July 1987, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  There is no evidence he applied to the U.S. Court of Military Appeals for a review of his case.

9.  On 27 October 1987, he voluntary consented to being placed on excess leave upon completion of his sentence.

10.  Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 81, dated 25 February 1988, shows that after completion of all required post-trial and appellate reviews, the convening authority affirmed the applicant's sentence and ordered it executed.

11.  He was discharged in pay grade E-1 on 16 March 1988, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial.  He was credited with completing 1 year, 8 months, and 26 days of net active service and time lost from 14 to 17 February 1987 and 18 February to 12 November 1987.  His service was characterized as bad conduct.  

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 3-10 – A Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general court-martial after completion of appellate review and after such affirmed sentence had been ordered duly executed.

   b.  Paragraph 3-7b – a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

13.  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 change a court-martial 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 was convicted by a general court-martial and was sentenced to a bad conduct discharge.  His discharge was affirmed and he was discharged accordingly on 16 March 1988.

2.  He provided no evidence showing his discharge was unjust.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  His contentions were carefully considered; however, he has not provided evidence or sufficient argument to show his discharge should be upgraded to a general discharge as a result.  He was properly discharged in accordance with pertinent regulations with due process and no violation of his rights.  

3.  Without evidence to the contrary, his trial by court-martial was warranted by the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

4.  Any redress by this Board of the finality of a court-marital 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 offense(s) and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

5.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20150000049





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ABCMR Record of Proceedings (cont)                                         AR20150000049



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