IN THE CASE OF: BOARD DATE: 10 November 2015 DOCKET NUMBER: AR20150004495 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 his bad conduct discharge (BCD) be upgraded to a general discharge. 2. The applicant states: a. He was a 20-year-old E-1 at the time. He was immature and it was his first time away from home. b. He made a very bad decision in who he picked for friends. He thought he was helping a friend by allowing him to store stuff in his room. He never asked his friend what it was or where he got it. c. He truly feels he grew up with undiagnosed mental deficiencies and he believes these were a large part of his poor decision making in his past. He has been in and out of treatment for his depression and anxiety since his discharge and it was only recently after talking with his therapist that he has been urged to request an upgrade of his discharge. He believes it was his depression and trying to fit in that caused him to make the poor decisions. d. He was court-martialed for his actions as a 20-year-old E-1. He was charged with receiving stolen property, accessory after the fact to larceny, and being absent without leave (AWOL). e. He is bothered by the fact that his record shows he was released from the service with a BCD. He is now close 45 years of age. Since his discharge, he has been an active member of society and managed to stay out of any real trouble in his adult life. 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 4 April 1990. He held military occupational specialty 19D (Cavalry Scout). 3. His DA Form 2-1 (Personnel Qualification Record - Part II) shows he was awarded the National Defense Service Medal, Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and the First Class Marksmanship Qualification Badge with Grenade Bar. Item 21 (Time Lost) shows three entries totaling 217 days. 4. He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 2 November 1990 for violation of Article 85, being absent in desertion from 31 August 1990 to 6 September 1990. 5. A general court-martial convicted him on 20 August 1991 of – * being AWOL from 18 April to 1 May 1991 * receiving stolen property on 10 November 1991 * being an accessory after the fact on 9 November 1990 * committing larceny on 17 November 1990 6. He was sentenced to confinement for 24 months, forfeiture of all pay and allowances, and a BCD. 7. The convening authority approved the sentence and, except for the BCD, ordered it executed. 8. The U. S. Army Court of Military Appeals affirmed the findings of guilty and the sentence on 27 February 1992. 9. General Court-Martial Order Number 132, Headquarters, U. S. Army Armor Center and Fort Knox, dated 8 October 1992, announced his sentence had been affirmed. Article 71(c) having been complied with, the BCD was to be executed. 10. The applicant was discharged on 1 March 1993 with a BCD. He had completed 1 year, 3 months, and 28 days of net active service with time lost from 31 August to 5 September 1990, from 18 April to 30 April 1991, and from 20 August 1991 to 1 March 1993. 11. His medical records are not available for review and there is no record showing he was diagnosed with any mental deficiency during his active duty service. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time stipulated the following: a. An honorable discharge is a separation from the Army with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally meets 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. b. 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. c. An enlisted person will receive a BCD pursuant only to an approved sentence of a court-martial imposing a BCD. The appellate review must be completed and the affirmed sentence ordered duly executed. 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 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 offenses 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. There is no evidence he was diagnosed with any mental deficiency during his active duty service or that a mental deficiency contributed to the misconduct that led to his court-martial and BCD. 3. The applicant has provided no evidence to support his request for an upgrade of his discharge. He was over 20 years old when he enlisted and he had demonstrated the capacity for honorable service by completion of training. 4. In view of the foregoing, his request should be denied. 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) AR20150004495 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1