RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060013747 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. James Vick

Chairperson

Mr. Patrick McGann

Member

Mr. Gerald Purcell

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, in effect, that clemency be granted in the form of an honorable discharge. 

2.  The applicant does not provide an explanation. 

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 12 June 1996.  The application submitted in this case is dated 29 June 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted on 18 October 1991 for a period of 5 years.  He successfully completed basic training and advanced individual training in military occupational specialty 75D (personnel records specialist).  He attained the rank of specialist effective 18 December 1993.

4.  On 21 February 1995, in accordance with his pleas, the applicant was convicted by a general court-martial of attempted larceny, conspiracy to commit larceny, larceny, and presenting two false claims.  He was sentenced to be reduced to E-1, to forfeit $500 pay per month for 18 months, to be confined for 
18 months, and to be discharged from the service with a bad conduct discharge. On 13 June 1995, the convening authority approved the sentence but suspended confinement in excess of 8 months for 8 months.

5.  On 20 October 1995, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

6.  The bad conduct discharge was ordered to be executed on 27 March 1996.

7.  Accordingly, the applicant was discharged with a bad conduct discharge on 12 June 1996 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served 4 years, 1 month, and 15 days of total active service with 192 days of lost time due to confinement.   

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge 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.

9.  Section 1552(f), Title 10, United States Code states that the Army Board for Correction of Military Records can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice or to take clemency action.

10.  Army Regulation 635-200, 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.  

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged with a bad conduct discharge for attempted larceny, conspiracy to commit larceny, larceny, and presenting two false claims.  
As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable discharge is not warranted in this case, nor was his service sufficiently satisfactory to warrant a general discharge.

2.  Records show the applicant should have discovered the alleged injustice now under consideration on 12 June 1996; therefore, the time for the applicant to file a request for correction of any injustice expired on 11 June 1999.  The applicant 
did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JV______  _PM____  __GP___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




___James Vick_________
          CHAIRPERSON




INDEX

CASE ID
AR20060013747
SUFFIX

RECON

DATE BOARDED
20060424
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19960612
DISCHARGE AUTHORITY
AR 635-200 Chapter 3
DISCHARGE REASON
As a result of court-martial
BOARD DECISION
NC
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.