BOARD DATE: 18 February 2016 DOCKET NUMBER: AR20150005446 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 (BCD) to a general discharge (GD). 2. The applicant states: a. He was told by the Judge Advocate General (JAG) officer that represented him that his BCD would be upgraded to a GD 1 year after his court-martial. b. He was told that he had to conduct himself as a civilian without any incident and his discharge would be upgraded. c. The JAG officer stated that his conduct did not warrant a dishonorable discharge; therefore, his discharge could be upgraded. d. He would like for his children to view him as a person who served his country honorably. 3. The applicant provides an undated, self-authored general statement. 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 30 November 1982. He completed training as a cannon crewmember. 3. On 27 August 1984, the applicant was convicted, pursuant to his pleas, by a special court-martial of larceny of personal checks of some value in early May 1984, three specifications of forgery of checks totaling $300.00, and larceny of property of a value less than $100.00. He was sentenced to the following: * BCD * Confinement for 3 months * Forfeiture of pay for 3 months 4. The convening authority approved the sentence as adjudged and except for that portion pertaining to his BCD, the convening authority ordered the sentence executed. 5. The U.S. Army Court of Military Review held the findings of guilty and the sentence as approved by the convening authority correct in law and fact, and affirmed the findings of guilty and the sentence. 6. Special Court-Martial Order Number 85, issued by the U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, dated 10 June 1985, noting that the sentence had been finally affirmed, ordered the BCD executed. 7. On 10 July 1985, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of a duly reviewed and affirmed special court-martial conviction. He had completed 2 years, 4 months, and 29 days of net active service this period. He received a BCD. 8. The available records do not show that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 9. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that 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 modify the severity of the punishment imposed. 10. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-11 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence duly executed. b. Paragraph 3-7a states 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. c. Paragraph 3-7b states that a GD 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. DISCUSSION AND CONCLUSIONS: 1. The applicant was convicted by a special court-martial of larceny of personal checks of some value in early May 1984, three specifications of forgery of checks totaling $300.00, and larceny of property of a value less than $100.00. He was discharged as a result of a duly reviewed and affirmed special court-martial conviction. He has not provided any evidence to show the type of discharge he received was in error, unjust, or too harsh. He has also not provided evidence showing that he was told by a JAG officer that his BCD would be upgraded to 1 year after his discharge. The bad conduct discharge he received appropriately characterizes his service. 2. The applicant's contentions regarding his children have been noted. However, they are not sufficiently mitigating to warrant the requested relief. 3. 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. Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate. As a result, clemency is not warranted in this case. 4. 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. A discharge may be upgraded by the Army Discharge Review Board (ADRB) within its 15-year statute of limitations or this Board if either determines the discharge was improper or inequitable. A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing. 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) AR20150005446 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005446 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1