RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 1 March 2007
DOCKET NUMBER: AR20060008775
I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.
Mr. Gerard W. Schwartz
Acting Director
Mr. Paul Wright
Analyst
The following members, a quorum, were present:
Mr. Thomas M. Ray
Chairperson
Mr. Jeffrey C. Redmann
Member
Mr. James R. Hastie
Member
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion, if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his Bad Conduct Discharge (BCD) be upgraded to a General Discharge.
2. The applicant states he has been employed by the Federal Government from 1989 until present. He feels he has paid his debt to the service for his error in judgment which led to his discharge and forfeiture of his military career.
3. The applicant provides no documentation.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 9 November 1987. The application submitted in this case is dated 15 June 2006.
2. On 8 August 1975, the applicant enlisted in the Regular Army for a period of 3 years. He completed all required training and was awarded military occupational specialty (MOS) 72E2O, Telecommunications Center Operator. He continued to serve on active duty until his current discharge on 9 November 1987 and obtained the rank of Sergeant (E-5). The available records show he had tours of duty in Germany and Turkey.
3. On 10 December 1986, the applicant was convicted by a Special Court-Martial for stealing Travelers Cheques of a value of $380.00, the property of another Soldier, on 7 November 1986; for attempting to steal Travelers Cheques of a value of $300.00, the property of the American Express Company, on 7 November 1986; for fraudulently countersigning another Soldier's signature to a cheque on 7 November 1986; and for fraudulently trying to erase the signature of another Soldier on a cheque on 7 November 1986. The sentence included reduction to pay grade E-1 and a Bad Conduct Discharge.
4. On 12 February 1987, the General Court-Martial convening authority approved the sentence except for the Bad Conduct Discharge pending appellant review.
5. On 29 April 1987, the United States Army Court of Military Review affirmed the findings of guilt and the sentence.
6. The applicant petitioned for an appeal. On 20 July 1987, the United States Court of Military Appeals denied his petition.
7. On 24 September 1987, a supplemental Special Court-Martial order indicated the sentence had been affirmed and directed that the Bad Conduct Discharge be executed.
8. On 9 November 1987, the applicant was separated from the Army with a Bad Conduct Discharge. His DD Form 214 incorrectly states his character of service as Under Other Than Honorable Conditions (BCD). However, his SPD code, JJD, properly reflects his discharge as a result of a court-martial sentence. He had a total of 12 years, 2 months, and 22 days of active creditable Federal service. He had a period of excess leave for 239 days.
9. There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within that Board's 15-year statute of limitations.
10. The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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 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 states he has been employed by the Federal Government from 1989 until the present time. However, he had not provided any evidence to support this statement. Although he has obviously succeeded in overcoming the obstacles associated with a Bad Conduct Discharge, employment by the Federal Government, in itself, is not sufficient basis for granting clemency in the form of an upgrade of a discharge.
2. The applicant's serious offenses of stealing from a junior enlisted Soldier and attempting to steal from a banking institution are not in keeping with the standards expected of Soldier of his grade and time in service. Therefore, clemency in the form of an upgrade of his Bad Conduct Discharge is not warranted.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__tmr___ __jcr___ __jrh___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that 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.
Thomas M. Ray
______________________
CHAIRPERSON
INDEX
CASE ID
AR20060008775
SUFFIX
RECON
DATE BOARDED
20070301
TYPE OF DISCHARGE
(BCD)
DATE OF DISCHARGE
19871109
DISCHARGE AUTHORITY
AR 635-200, Chap 3
DISCHARGE REASON
BOARD DECISION
(DENY)
REVIEW AUTHORITY
ISSUES 1.
108.0008
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