RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 MAY 2008
	DOCKET NUMBER:  AR20070017055 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 his bad conduct discharge be upgraded so he can enlist to serve in Iraq.

2.  The applicant states, in effect, he wants his discharge upgraded to allow him to rejoin the military and serve in Iraq.  He further states he made some foolish choices when he was young.  He further states he is now older and wiser and wants to be given a second chance to prove himself and serve his country.

3.  The applicant provides a copy of his DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), a self-authored statement, four personal references, one certificate of existence for the applicant's limited liability company, two certificates appointing him a notary public, four types of identification cards, a list of lawyers, a list of what appear to be places of employment, and a course description from Boston Emergency Medical Services, in support of his application.

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 military personnel record shows he enlisted, 24 days before his 19th birthday, in the Regular Army on 13 March 1984 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 11B (infantryman).

3.  On 6 August 1985, the applicant received a local bar to reenlistment.  According to the Bar to Reenlistment Certificate, the applicant had accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 5 June 1985, for disrespect toward a noncommissioned officer.

4.  On 1 October 1985, the applicant was tried before a general court-martial.

	a.  The applicant pled guilty to and was found guilty of being absent without leave (AWOL) from 18 - 25 May 1985, violation of a general order by the purchase of audio and stereo equipment of a total value of $3,102.00 for illegal transfer and production of income through sale, violation of a general order by failure to present valid and bonafide documentation showing possession or lawful disposition of controlled items of a value of $3,102.00, and conspiracy with another Soldier to purchase goods for illegal transfer and production of income through sale of controlled and duty free items.

	b.  The applicant pled not guilty but was convicted of disobeying a noncommissioned officer, AWOL from 27 July to 1 August 1985, three specifications of soliciting a Soldier to violate a general order by purchasing goods for illegal transfer and production of income through sale, and making a false statement under oath.

	c.  The applicant's sentence consisted of forfeiture of all pay and allowance, confinement for 30 months, and a bad conduct discharge.  

5.  On 6 December 1985, the convening authority approved the sentence.

6.  On 30 September 1986, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.

7.  On 15 October 1986, the applicant petitioned the United States Court of Military Appeals for review of his conviction.

8.  On 18 May 1989, upon remand from the United States Court of Military Appeals, the United States Army Court of Military Review set aside the finding of guilty for violation of a general regulation by failure to present valid and bona fide documentation showing possession or lawful disposition of controlled items of a value of $3,102.00 and dismissed the specification.  The United States Army Court of Military Review affirmed the remaining findings of guilty and upon reassessing the sentence on the basis of the error noted and the entire record, affirmed the sentence.

9.  On 16 June 1989, the United States Court of Military Appeals affirmed the decision of the United States Army Court of Military Review.


10.  On 24 August 1989, the applicant's bad conduct discharge was ordered executed.

11.  On 15 September 1989, the applicant was discharged as a result of a court-martial.  He had completed 3 years, 5 months, and 13 days of active service that was characterized as bad conduct.

12.  The applicant submitted a statement, dated 30 December 2007, wherein he stated he made a foolish choice in his younger years.  However he stated he has made a change in his way of thinking and choices in life and has become a respected citizen in the law community.  He further stated he graduated from Northeastern University under the associate paralegal law program and became registered with the Massachusetts Bar Association.  He further stated he is currently enrolled in the Boston University/Boston Paramedic Program.  He concluded that he wants to re-join the Massachusetts Army National Guard to serve his country as a licensed paramedic.

13.  The applicant submitted four references from individuals who have had a business relationship with him.  These references attest to the applicant's reputation as an exceptional worker, his ability to work under pressure, and possessing strong interpersonal skills.  These references also picture the applicant as a resourceful, creative, and solution-oriented person, who works effectively with other people and colleagues at his own level.  

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and requires that the appellate review must be completed and then the affirmed sentence ordered duly executed.

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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s age at the time of enlistment was noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly issued discharge.

2.  The evidence shows that the applicant’s trial by general 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.

3.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  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 achievements and conduct are noted.  However, good post-service conduct alone is usually not sufficiently mitigating to upgrade a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

5.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis to support the applicant’s request to upgrade his discharge at this time.  

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  __X_____  __X____  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.




      _________X_____________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070017055



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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