IN THE CASE OF: BOARD DATE: 12 January 2016 DOCKET NUMBER: AR20150005612 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 sentence did not match the crime. The evidence was circumstantial. The jury did not want to give him a BCD they wanted to give him an honorable discharge (HD). 3. The applicant does not provide any 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 11 July 1984. After completing initial entry training, he was awarded military occupational specialty (MOS) 31K (Combat signaler). 3. General Court-Martial (GCM) Order Number 83, dated 3 September 1993, shows he was found guilty of: a. presenting false official documents on 16 July 1992 and 30 July 1992; b. soliciting another to commit housebreaking between 1 August 1992 and 31 August 1992; c. soliciting another to commit graft on 23 September 1992; d. attempted murder on 1 December 1992; e. breaking and entering with intent to commit murder on 1 December 1992; and f. wrongfully endeavoring to influence the testimony of a witness, between 1 November 1992 and 30 November 1992. 4. His sentence was reduction to private (PV1)/E-1, confinement for 1 year, and a BCD. The sentence was approved and, except for the part of the sentence extending to a BCD, was executed. 5. GCM Order Number 91, dated 2 August 1995 shows, in pertinent part, that his sentence was finally affirmed and the BCD was ordered duly executed. 6. His DD Form 214 shows, on 10 October 1995, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3, by reason of court-martial. This form further lists his character of service as "bad conduct." 7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-11 (BCD) states 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 ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. b. Paragraph 3-7a states that an HD 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 general discharge (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. 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 contends his punishment did not fit the crime and the evidence against him was circumstantial. 2. He was convicted of a number of offenses to include attempted murder. His conviction and sentence by a general court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. 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 serious nature of the offenses for which he was charged and convicted it would not be appropriate to grant clemency 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) AR20150005612 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005612 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1