RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 October 2007
	DOCKET NUMBER:  AR20060010447 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. James E. Anderholm 

Member

Mr.  Joe R. Schroeder

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.

2.  The applicant states, in effect, that he has turned his life around since his separation from the service.  He is really sorry that his term of service ended the way it did.  But if you look at his service records before and after the first Gulf War you will notice significant difference.  His conduct had nothing to do with the way he fought in the first Gulf War.  

3.  The applicant further states that it has been a long and tough road.  He has gotten his act together.  He has a wonderful family and wants to provide them with the care and services provided a veteran.

4.  The applicant provides no additional documentation in support of this case.

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 14 November 1989 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 91A (Medical Specialist).  There are no documents in his records that show he served in Operation Desert Storm.

3.  On 24 July 1992, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for stealing eight cartons of cigarettes, property of the Main Exchange store.

4.  On 27 July 1992, the applicant was convicted, pursuant to his pleas, by a general court-martial, of stealing a blank savings account withdrawal slip, for stealing a blank check, four specification of stealing lawful currency, and four specifications of with intent to defraud/commit forgery.  His sentence consisted of a forfeiture of all pay and allowances, confinement for two years, and a BCD.  

5.  The affirmation of the U.S. Army Court of Criminal Appeals (USACCA) is not available.  Department of the Army, Headquarters, U.S. Army Field Artillery Center and Fort Sill General Court-Martial Order Number 116, dated 22 October 1993, shows that the USACCA affirmed the finding of guilty and the sentence.

6.  On 1 November 1993, the applicant was discharged with a bad conduct discharge pursuant to his court-martial sentence.  He completed 3 years, 
11 months, and 18 days of creditable active service. 

7.  The applicant's DD Form 214 with the period ending 1 November 
1993 erroneously shows in item 25 (Separation Authority) the entry "AR 635-200, CHAP 10"; item 26 (Separation Code) erroneously shows the entry "KFS"; item 27 (Reentry Code) erroneously shows the entry "RE-3"; item 28 (Narrative Reason for Separation) erroneously shows the entry "IN LIEU OF TRIAL BY COURT-MARTIAL"; and item 29 (Dates of Time Lost During This Period) erroneously shows the entry "NONE".  However, since the applicant did not request that these items be corrected, no action will be taken at this time.

8.  Army Regulation 635-200 governs separations of enlisted personnel. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

9.  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.

10.  In accordance with Title 10 of the United States Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction by a court-martial convened under the UCMJ.  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 evidence of record confirms that the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  By law, the Army Board of Correction for Military Records may not disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

3.  The applicant's entire record of service and post service were considered in this case.  However, given the seriousness of the offenses for which he was convicted and his prior misconduct, it is determined that these factors are not sufficiently meritorious or mitigating to warrant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__SLP __  __JEA  __  __JRS __  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.




___ Shirley L. Powell __
          CHAIRPERSON




INDEX

CASE ID
AR20060010447
SUFFIX

RECON

DATE BOARDED
16 OCTOBER 2007
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.6800.0000
2.

3.

4.

5.

6.