IN THE CASE OF: BOARD DATE: 20 August 2013 DOCKET NUMBER: AR20130000876 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 upgrade of his bad conduct discharge (BCD) to an other than honorable discharge. 2. The applicant states: * he believes his military record shows he was an outstanding Soldier until the events that led to his discharge * he acknowledges that what he did was wrong but feels the discharge was unjust * he has been a model citizen since his discharge * he is raising his three children * an upgrade of his discharge would allow him to seek medical benefits for injuries he sustained while on active duty * he would see if he could obtain help with paying for his children's college education 3. The applicant provides four pages of a Standard Form (SF) 513 (Consultation Sheet). 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 record shows he enlisted in the Regular Army on 16 February 1988. 3. The applicant's record contains a copy of Headquarters, 8th Infantry Division (Mechanized), General Court-Martial (GCM) Order Number 5, dated 5 February 1991, which shows he pleaded not guilty but was found guilty of: * without authority going from his guard with intent to abandon the same * willfully and wrongfully damaging a balcony door, the amount of damage being more than $100.00 * wrongfully appropriating an M16A2 rifle, military property of the U.S. Government, valued at $433.00 * larceny of a 1977 Opel Ascona, valued at $800.00 * larceny of detusche marks 700 currency, $5.00 currency, and a Eurocheck card * robbery of a 1989 Opel Kadette, valued at $12,000.00 * four specifications of unlawful assault * assault of a noncommissioned officer * unlawfully breaking and entering the dwelling house of S----a G. W-----s, with the intent to commit assault * two specifications of communicating threats * escaping from the custody of a person authorized to apprehend him 4. On 29 October 1990, the sentence was adjudged and the applicant was sentenced to be reduced to private (E-1), to forfeit all pay and allowances, to be confined for a period of 2 years and 4 months, and to be dishonorably discharged from the U.S. Army with a BCD. The sentence was approved and, except for the part of the sentence extending to a BCD, was executed. 5. The applicant submitted four pages of his SFs 513, dated during the period 17 June 1991 to 3 September 1991, which shows while he was assigned to the U.S. Army Corrections Barracks, Fort Riley, KS, he received consultations from various clinics for hurting his toe, recurrent right shoulder pain, injuring his left shoulder, and dislocating his thumb. 6. On 22 August 1991, the U.S Army Court of Military Review affirmed the findings of guilty and the sentence. 7. The applicant's record contains a copy of U.S. Disciplinary Barracks, U.S. Army Combined Arms Command and Fort Leavenworth, GCM Order Number 42, dated 26 March 1992, which shows that Article 71(c) having been complied with, the applicant's sentence was affirmed and the BCD was ordered duly executed. 8. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 10 April 1992, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, by reason of court-martial - other. This form further lists the applicant's character of service as bad conduct. 9. 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 ABMCR is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. 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 3-7c provides that an under other than honorable conditions discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial in the following circumstances when the reason for separation is based upon: (1) a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army; and (2) one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant was convicted by a GCM and he received a BCD. Trial by a GCM was warranted by the serious nature of the offenses for which the applicant was charged and convicted. The sentence is commensurate with the misconduct for which the applicant was convicted. 2. The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for benefits. Every case is individually decided based upon its merits when an applicant requests a discharge upgrade. 3. His post-service behavior evident by the raising of three children is noteworthy. However, it alone is not sufficiently mitigating to support a change in the narrative reason for his discharge. 4. 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 was appropriate. As a result, clemency is not warranted 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) AR20130000876 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130000876 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1