IN THE CASE OF:	  

		BOARD DATE:	  22 October 2015

		DOCKET NUMBER:  AR20150002742 


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, in effect, while serving at Fort Hood, TX, in 1990 he was court-martialed for theft, being absent without leave (AWOL), and breaking restriction.  These incidents occurred during his addiction.  Twenty-five years later, he is still seeking to atone for the guilt and shame of his behavior.  He hopes his discharge will be upgraded to allow him closure, if any, for his very remorseful behavior.  He joined the Army in July 1982 and was discharged in October 1990.  He obtained the rank/pay grade of sergeant/E-5 due to hard work and dedicated service.  He made a very big mistake and hopes to have his character of service upgraded to general, under honorable conditions.

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 (RA) on 13 July 1982 and he held military occupational specialty 13B (cannon crewmember).  He served in Korea from 21 December 1983 through 12 December 1984.  

3.  He reenlisted in the RA on 24 February 1984 for 5 years.

4.  He was promoted to pay grade E-5 on 8 June 1987.

5.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on/for:

   a.  23 August 1989 – failing to go to his appointed place of duty on 16 June 1989; his punishment included a reduction to pay grade E-4, a suspended forfeiture of $500 pay for 1 month, and 21 days of extra duty and restriction.

   b.  13 September 1989 – dishonorably failing to pay his debt from 20 March through 7 August 1989, failing to go to formation on 30 May 1989 (twice), and breaking restriction on 6 September 1989.  His punishment included a reduction to pay grade E-3, a suspended forfeiture of $216 pay for 1 month, and 14 days of extra duty.

6.  A DA Form 4187 (Personnel Action), dated 14 November 1989, shows he was reduced to pay grade E-4 effective 13 September 1989.

7.  He was reported in an AWOL status from 9 to 11 January 1990.

8.  On 1 March 1990, he was convicted by a general court-marital of one specification each of larceny, wrongful appropriation of a motor vehicle, being AWOL from 9 to 10 January 1990, and willfully disobeying a lawful order.  He was sentenced to a forfeiture of all pay and allowances, a reduction to pay grade E-1, confinement for 9 months, and a bad conduct discharge.

9.  On 9 April 1990, 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 placed him in confinement.

10.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

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

12.  His record is void of the complete facts and circumstances of his discharge; however, his records contain a DD Form 214 showing he was discharged in pay grade E-1 on 4 October 1990, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Administrative Personnel Separations), chapter 3, As a result of court-martial, with a bad conduct discharge.  He was credited with completing 7 years, 7 months, and 13 days of net active service.  He also had 219 days of time lost.   

13.  Item 18 (Remarks) of his DD Form 214 contained the entry, "Continuous Honorable Active Service From:  820713-850710; 850711-890223//Nothing Follows."

14.  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 3-11 – A Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general court-martial after completion of the 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.

15.  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 4 October 1990.

2.  His record is void of any evidence his court-martial was unjust or inequitable.  Without evidence to the contrary, trial by court-martial was warranted by the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations with due process with no violation of his rights.   

3.  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 offenses 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.

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)                                         AR20150002742



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ABCMR Record of Proceedings (cont)                                         AR20150002742



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