BOARD DATE: 8 July 2010 DOCKET NUMBER: AR20090021438 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 that his bad conduct discharge be upgraded to a general, under honorable conditions discharge and that the reason for his separation be changed. 2. The applicant states he was having trouble adjusting to a non-war Army and had just obtained a divorce. He contends he made a bad decision and regrets it. He is trying to reenlist but his discharge code prevents reenlistment. 3. The applicant provides no additional documentation in support of this application. 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 and entered active duty on 28 March 1989. He completed his initial entry training and was awarded military occupational specialty 19D (Cavalry Scout). 3. On 7 January 1993, the applicant was found guilty by a general court-martial of larceny of military property. He was sentenced to reduction to pay grade E-1, forfeiture of $300 per month for 6 months, confinement for 6 months, and to be separated from the service with a bad conduct discharge. On 30 March 1993, the sentence was approved. The sentence having been affirmed pursuant to Article 71c, the bad conduct discharge was ordered executed. 4. Accordingly, the applicant was discharged on 15 November 1993, under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, by reason of court-martial with a bad conduct discharge. 5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge. It stipulated, in pertinent part, that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence was ordered duly executed. 6. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 7. 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 that his discharge should be upgraded has been carefully reviewed. 2. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which the applicant was convicted. 3. Based on the applicant's misconduct, his service clearly did not meet the standards of acceptable conduct for Army personnel. This misconduct also rendered his service unsatisfactory. Therefore, he is not entitled to an honorable or a general, under honorable conditions 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. 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. 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) AR20090021438 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090021438 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1