RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070010645 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. David K. Haasenritter

Chairperson

Mr. James R. Hastie

Member

Mr. Edward E. Montgomery

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 an upgrade of his bad conduct discharge to a general, under honorable conditions discharge.

2.  The applicant states that he was young when he made a mistake during his military service and that his discharge is hindering him from going on with his life.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  a self-authored letter, dated 21 July 2007;

	b.  a character reference letter, dated 20 July 2003, from one of the applicant's sisters;

	c.  an undated character reference letter, from the applicant's second sister, a Soldier in the Army;

	d.  an undated character reference letter, from the applicant's mother;

	e.  a character reference letter, dated 24 July 2003, from an employment and career advancement specialist at the Hope Program, Brooklyn, New York;

	f.  a character reference letter, dated 12 June 2003, from the executive director of the Hope Program, Brooklyn, New York;

	g.  an undated character reference letter, from one of the applicant's friends at the Hope Program, Brooklyn, New York;

	h.  a character reference letter, dated 9 July 2003, from one of the applicant's friends at the Cumberland Diagnostic and Treatment Center, Brooklyn, New York;

	i.  a character reference letter, dated 11 July 2003, from a manager at the Goodwill Industries of Greater New York and Northern New Jersey;

	j.  a character reference letter, dated 17 September 2006, from an assistant professor at the Brooklyn College, Brooklyn, New York;

	k.  a character reference letter, dated August 2005, from a friend; and

	l.  a character reference letter, dated 27 June 2007, from a member of the Credentialed Alcoholism and Substance Abuse Counselor (CASAC).

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's record shows that he was born on 26 October 1960 and enlisted in the Regular Army at the age of nearly 20.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76Y (Equipment Records and Parts Specialist).  The highest rank he attained during his military service was specialist four/pay grade E-4.

3.  The applicant's records show that he was awarded the Army Service Ribbon, the Army Achievement Medal (1st Oak Leaf Cluster), the Good Conduct Medal, the NCO Professional Development Ribbon, the Overseas Service Ribbon, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  The applicant's records do not show any significant acts of valor during his military service.

4.  On 4 March 1987, the applicant pled guilty at a General Court-Martial to one specification of making a false statement on 20 November 1986; one specification of wrongfully and unlawfully making and uttering $1,170.95 worth of checks without sufficient funds on 24 April 1986; one specification of wrongfully and unlawfully making and uttering a check in the amount of $100 without sufficient funds on 25 April 1986; one specification of using of a false and fraudulent statement to obtain approval of a health and welfare advance on entitlements on 20 November 1986; one specification of larceny of three checks and a complete booklet of personal checks, of some value, that were the property of another Soldier, between 1 July 1986 and 15 September 1986; and one specification of forgery of seven checks between 29 July 1986 and 
15 September 1986.  The Court-Martial sentenced him to a bad conduct discharge, confinement for two years, forfeiture of all pay and allowances, and reduction to the grade of private/pay grade E-1.

5.  On 15 April 1987, the convening authority approved the applicant's sentence and, except for the bad conduct discharge, ordered the sentence executed.

6.  On 27 August 1987, the U.S. Court of Military Review held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, the U.S. Court of Military Review affirmed the findings of guilty and the sentence.

7.  On 12 January 1988, the Chairman of the Army Clemency and Parole Board, on behalf of the Secretary of the Army, approved parole for the applicant and directed he be released from confinement and placed in parole status effective 4 March 1988, contingent upon acceptance of the case by the Federal Probation Officer and continued good behavior. 

8.  Subsequent to the approved parole, the U.S. Army Correctional Activity, Fort Riley, Kansas, published Orders Number 28-10, on 11 February 1988, authorizing the applicant’s travel from the U.S. Army Correctional Activity, Fort Riley, Kansas, to his home of record in Brooklyn, New York, effective 3 March 1988.  However, on 3 March 1988, U.S. Army Correctional Activity, Fort Riley, Kansas, published Orders Number 41-2, revoking Order Number 28-10. 

9.  On 28 March 1988, U.S. Army Correctional Activity, Fort Riley, Kansas, published Orders Number 57-3, releasing the applicant from the U.S. Army Correctional Activity, Fort Riley, Kansas, and assigning him to the Correctional Holding Detachment of the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, effective 29 March 1988 to be placed on military parole. 

10.  On 11 October 1988, the U.S. Court of Military Appeals ordered the decision of the U.S. Court of Military Review affirmed. 

11.  On 8 February 1989, United States Disciplinary Barracks, Fort Leavenworth, Kansas, published general Court-Martial Order Number 32, ordering the applicant's bad conduct discharge be executed, as appellate review of his conviction had been completed. 




12.  Upon completion of his appellate review and affirmance of his conviction, the applicant was discharged on 17 March 1989.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued shows that he was discharged with a bad conduct discharge in accordance with paragraph 3-11 of Army Regulation 635-200 (Personnel Separations) as a result of trial by Court-Martial.  This form further confirms that he completed 6 years, 8 months, and
1 day of creditable military service and had 743 days of lost time due to confinement.  

13.  In a self-authored statement, dated 21 July 2007, the applicant states that he was young and immature.  He further adds that upon arrival in Germany, he loved what he did for the Army and everything was going smoothly, until he discovered that his spouse was having an affair.  He countered that with an affair of his own.  As his marriage declined, it began to affect his military career and eventually led him to abuse drugs and alcohol.  He concludes that he has led an honest life and has been working in the security field in Brooklyn, with future plans to attend college. 

14.  The applicant submitted several character reference letters, authored by friends, acquaintances, and immediate family members.  All these letters comment on the applicant's character as a loving and caring person, honest and trust-worthy, and hardworking and reliable.

15.  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 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.

16.  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.



17.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant was nearly 20 when he enlisted in the Regular Army and 26 years old when he committed his offense.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

3.  Evidence of record shows that the applicant was convicted by a General Court-Martial, which 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.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

4.  The applicant's post-service work history, achievements since his discharge, and character reference letters are noted.  However, the U.S. Army has never had a policy where a discharge was upgraded due to passage of time.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The ABCMR will warrant any changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable

5.  After review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, the applicant is not entitled to relief.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__dkh___  __jrh___  __eem___  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.



							David K. Haasenritter
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.