RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 1 February 2007
DOCKET NUMBER: AR20060010222
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.
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 his Bad Conduct Discharge (BCD) be upgraded to an Honorable Discharge (HD).
2. The applicant states he was young and immature, and was not capable of fulfilling his duties back in 1984. He adds he came from a dysfunctional family and was forced into the Army by family circumstances. He is trying to turn his life around and a good discharge would help in that regard.
3. The applicant provides a handwritten note and his DD Form 214 (Certificate of Release or Discharge From Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 23 August 1984. The application submitted in this case is dated 4 July 2006.
2. The applicant was born on 24 December 1964 and enlisted in the Regular Army for 3 years on 9 February 1983. He was 18 years, 1 month, and 17 days old at enlistment.
3. The applicant completed One-Station Unit Training (OSUT) at Fort Benning, GA and was awarded military occupational specialty (MOS) 11B (Infantryman). He was then assigned to Company C, 1st Battalion, 58th Infantry, Fort Benning.
4. The applicant was apprehended by civil authorities in Columbus, GA on 4 November 1983 for writing dishonored checks. He was released from confinement and returned to military control on 2 December 1983.
5. The applicant was tried by a special court-martial on 27 January 1984. He was charged with:
a. Violation of the Uniform Code of Military Justice (UCMJ), Article 121, two specifications; in that he did, on/about 18 August 1983, steal US currency, of a value of $50, the property of the Army and Air Force Exchange Service, and; in that he did, on/about 7 January 1984, steal a 1977 Mercury Cougar, of a value of $2,200.00, the property of a sergeant.
b. Violation of the UCMJ, Article 123, in that he did, on/about 18 August 1983, with intent to defraud, falsely make a check in the amount of $50.00.
6. The applicant pled guilty to falsely making a check, but not guilty to the charges of "stealing" currency and a motor vehicle. However, he pled guilty to "wrongfully appropriating" currency and a motor vehicle. In accordance with his pleas, he was found guilty and was sentenced to reduction to private (PVT/E01), forfeiture of $397.00 pay per month for 3 months, confinement at hard labor for
3 months, and a BCD.
7. The findings and sentence in the case were affirmed during the appellate review process conducted in accordance with Article 71, UCMJ. On 6 August 1984, Special Court-Martial Order Number 65 was issued by Headquarters, US Army Infantry Center and Fort Benning directing that the discharge be executed. On 23 August 1984, the applicant's BCD was executed.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, of the regulation then in effect, provided that a Soldier would be given a BCD pursuant only to an approved sentence of a General Court-Martial or Special Court-Martial. The appellate review must have been completed and the affirmed sentence ordered duly executed.
9. 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. The Board 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. There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's 15-year statute of limitations.
DISCUSSION AND CONCLUSIONS:
1. The applicant has not shown that he was any less mature than any other
18-year old male when he enlisted in the Army. His acts of misconduct were serious violations of law, not minor infractions of the sort committed because of immaturity.
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 discharge appropriately characterizes the misconduct for which the applicant was convicted.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__bje___ __lds___ __mjf___ 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.
Barbara J. Ellis
______________________
CHAIRPERSON
INDEX
CASE ID
AR20060010222
SUFFIX
RECON
DATE BOARDED
20070201
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19840823
DISCHARGE AUTHORITY
AR 635-200 C3
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
105.0000
2.
110.0000
3.
4.
5.
6.
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