IN THE CASE OF: BOARD DATE: 18 November 2015 DOCKET NUMBER: AR20150005284 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. 2. The applicant states he was informed his discharge could be upgraded 5 years after his release from confinement. 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 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 20 August 1993. 3. The applicant appeared before a general court-martial hearing at Fort Stewart, Georgia, on 27 March 1997. a. He was charged with and found guilty of being absent without leave from on or about 11 October 1996 through on or about 15 October 1996. b. He was charged with and found guilty of making a false official statement on or about 15 October 1996. c. He was charged with and found not guilty of willfully damaging military property of value greater than $100.00 on or about 11 October 1996. d. He was charged with and found guilty of using cocaine between on or about 23 August 1996 through on or about 6 September 1996. e. He was charged with and found guilty of stealing non-military property of a value greater than $100.00 on or about 11 October 1996. f. He was charged with and found not guilty of stealing non-military property of a value less than $100.00 on or about 11 October 1996. g. He was charged with and found guilty of housebreaking on or about 11 October 1996. h. He was charged with and found guilty of being absent without leave from on or about 21 January 1997 through on or about 11 March 1997. i. He was charged with and found guilty of breaking restriction on or about 21 January 1997. 4. Headquarters, Fort Stewart, General Court-Martial Order Number 23, dated 3 July 1997, shows the court sentenced him to reduction to the rank/grade of private (PV1)/E-1, forfeiture of all pay and allowances, confinement for 200 days, and a bad conduct discharge. The convening authority approved his sentence of reduction to the rank/grade of PV1/E-1, forfeiture of $500.00 pay per month for 6 months was waived for 6 months effective 3 July 1997 through 3 January 1998 and would be paid directly to his wife for the support of his four children, confinement for 200 days, 20 days of which were credited against the sentence of confinement, and issuance of a bad conduct discharge. 5. Headquarters, U.S. Army Armor Center and Fort Knox, General Court-Martial Order Number 76, dated 5 March 1999, shows that after completion of all required post-trial and appellate reviews, the forfeiture of money, reduction in rank, confinement, and bad conduct discharge, as ordered by Headquarters, Fort Stewart, General Court-Martial Order 23, dated 3 July 1997, was ordered duly executed. 6. On 26 October 1999, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial with a bad conduct discharge. He completed a total of 5 years, 8 months, and 24 days of net active service with 163 days of lost time. 7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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 member's 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. b. Paragraph 3-7b provides that 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. Paragraph 3-11 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge. It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 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. The applicant's request for an upgrade of his bad conduct discharge was carefully considered. 2. He was given a bad conduct discharge pursuant to an approved sentence by a general court-martial that was warranted by the gravity of the offenses with which he was charged. His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted. The appellate review was completed and the affirmed sentence ordered duly executed. 3. The U.S. Army has never had a policy where a discharge was automatically upgraded. Every case is individually decided based upon its merits when an applicant requests a change to his or her discharge. 4. There is no indication that all requirements of law and regulation were not met and his rights were not fully protected. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 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) AR20150005284 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005284 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1