IN THE CASE OF: BOARD DATE: 27 February 2014 DOCKET NUMBER: AR20130011935 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, in effect, an upgrade of his bad conduct discharge (BCD). 2. The applicant states his circumstances did not warrant the severe disciplinary action he received. He was being treated by the Army for post-traumatic stress disorder, depression, and anxiety at the time he was discharged. 3. The applicant provides copies of third-party statements of support, commendatory documents, and his medical treatment records. 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’s records, though somewhat incomplete, show he enlisted in the Regular Army on 25 July 2002 and he completed his training as a construction engineer supervisor at Fort Leonard Wood, Missouri. 3. On 16 February 2006 while stationed in Hawaii, he was convicted pursuant to his pleas by a general court-martial of the wrongful possession of drug paraphernalia, four specifications of stealing property from the Post Exchange valued in excess of $500.00 for each offense, making a false official statement to law enforcement officials, and fleeing from law enforcement officials. He was sentenced to confinement for 38 months, forfeiture of all pay and allowances, and a BCD. However, the convening authority approved only so much of the sentence that provided for 12 months of confinement, forfeiture of all pay and allowances, and a BCD. 4. On 26 July 2007, orders were published announcing the findings as approved by the convening authority had been affirmed and that his BCD should be executed. 5. Accordingly, the applicant was discharged pursuant to a duly-reviewed and affirmed court-martial conviction on 7 September 2007. He completed 4 years, 3 months, and 26 days of active service and had 275 days of lost time due to confinement. 6. A review of the available evidence shows the applicant was diagnosed as having an adjustment disorder with depressed mood; however, there is no evidence to show he could not distinguish right from wrong or that his diagnosed condition was the cause of his misconduct. 7. 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 applicant's contentions and supporting documents have been noted; however, he did not provide sufficient evidence to warrant an upgrade of his discharge when considering the serious nature of his offenses. 2. The applicant's 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 BCD appropriately characterizes the misconduct for which he was convicted. As such, the type of discharge directed and the reasons therefor appear to be appropriate considering the available facts of the case. There is an insufficient evidentiary basis for granting the applicant an upgrade of his BCD to any other character of service. 3. Additionally, 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. Absent any mitigating factors, the type of discharge directed and the reasons therefor were appropriate. As a result, clemency is not warranted in this case. 4. Accordingly, there appears to be no basis to grant his request for an upgrade of his BCD. 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) AR20130011935 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130011935 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1