RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 May 2008
	DOCKET NUMBER:  AR20070018596 


	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 that his bad conduct discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states that he was court-martialed during his second Army enlistment.  The penalty was harsh for a first-time offense after 10 years of service.  Prior to that, his record was unblemished.

3.  The applicant states that the charges of larceny and conspiracy should never have been filed.  That was a matter between him and U. S. Air.  It was not service connected.  His luggage was checked in at Indianapolis, IN, but it did not arrive in Louisville, KY.  He reported his luggage lost, and U. S. Air paid restitution for his lost luggage.  Another Soldier from his duty station was on the same flight.  He also claimed that his luggage was lost.  Because of his claim,    U. S. Air was doubtful and denied restitution to that Soldier.  U. S. Air then sent a letter to the Post Commander concerning his claim and the other Soldier’s claim. 

4.  The applicant states that the U. S. Army Criminal Investigation Command (CID) investigated the other Soldier, and that Soldier was court-martialed and convicted.  Later, CID investigated him (the applicant), and charges were filed against him for larceny and conspiracy.  The other Soldier testified for the prosecution in exchange for a reduced sentence.  

5.  The applicant states that he entered confinement and was placed on red-level status, but he soon worked his way up to yellow-level status and finally green-level status, which is low risk and conveys more benefits.  He was allowed to have physical therapy and daily medical appointments.  That was exceptional under the circumstances, but he earned it through his conduct and attitude.  He received a certificate for completing the Larceny Offenders Class, even though he pled not guilty.  He received several favorable observation reports and was granted clemency by the convening authority.

6.  The applicant states that he had three reconstructive surgeries within his enlistments.  His injury is chronic, and medications will be needed daily, with therapy, for life.  Before the court-martial, he had been recommended for a medical discharge.  His injuries happened during his first Army enlistment and during his enlistment in the U. S. Marine Corps (USMC).  

7.  The applicant provides his USMC DD Form 214 (Certificate of Release or Discharge from Active Duty); orders and a certificate for the first award of the Army Good Conduct Medal; a USMC Certificate of Recognition; a USMC Certificate of Recruiting Excellence; a letter of congratulations, dated 11 August 1986; an Army Honorable Discharge Certificate, dated 28 August 1990; an Army Oath of Reenlistment, dated 29 August 1990; four letters of support, one dated 15 August 1992, one undated, one dated 4 February 1992, and one dated 7 July 1992 (apparently written in connection with his request for parole/clemency);    and two letters of support, one dated 20 November 2007 and one dated            24 November 2007.

8.  The applicant also provides a Report of Observation/Disciplinary Infraction, dated 15 September 1992; a memorandum, dated 11 August 1992, subject:  Status of Inmate (the applicant); a memorandum from the Department of Veterans Affairs (DVA), dated 27 March 1992; and a Medical Board Narrative Summary.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel states that the applicant cannot receive DVA benefits for his service-connected injuries because of his bad conduct discharge.

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 served in the USMC from 29 September 1984 through            28 September 1986, when he was honorably released from active duty.

3.  The applicant enlisted in the Regular Army on 2 February 1987 in the rank and grade of Sergeant, E-5. 

4.  On 28 August 1990, the applicant was honorably discharged.  He immediately reenlisted on 29 August 1990.

5.  Headquarters, U. S. Army Armor Center and Fort Knox General Court-Martial Order Number 129, dated 1 October 1992, shows that on 28 May 1992 the applicant was convicted (contrary to his plea) of conspiracy with another    Soldier to commit larceny of U. S. currency, of a value of about $3,833.00, on    or between 15 February 1991 and 12 June 1991; and (in accordance with his plea) of stealing U. S. currency, of a value of about $1,250.00, on or between    18 February 1991 and 18 April 1991, the property of U. S. Air.  A sentence of a bad conduct discharge, confinement for 18 months, and a reduction to Private,  E-1 was adjudged.

6.  Around June 1992, a Medical Board Narrative Summary noted that the applicant had a chief complaint of right knee pain, the result of an initial injury in February 1988.  He was referred to a Physical Evaluation Board.

7.  On 1 October 1992, with Headquarters, U. S. Army Armor Center and Fort Knox General Court-Martial Order Number 129, dated 1 October 1992, the convening authority approved a sentence of a bad conduct discharge, confinement for 10 months, and reduction to Private, E-1 for the applicant.

8.  The applicant provided a memorandum, dated 11 August 1992, subject:  Status of Inmate (the applicant) that indicates the Counseling Psychologist at the Fort Knox, KY Regional Correctional Facility saw a demonstrated potential for the applicant to quickly become a valuable member of society upon his discharge from confinement in light of his overall behavior at the facility.

9.  The applicant provided a Report of Observation/Disciplinary Infraction, dated 15 September 1992, that noted he always completed any assigned tasks with little or no supervision and it was recommended that whenever he became eligible for custody upgrade that it be approved.

10.  On 29 April 1993, the U. S. Army Court of Military Review affirmed the findings of guilty and the sentence.  The Court noted that the applicant raised several assertions of error (only one of which, ineffective civilian defense counsel, was identified), but all were found to be without merit.  However, inconsistent with Headquarters, U. S. Army Armor Center and Fort Knox General Court-Martial Order Number 129, dated 1 October 1992, the Court stated the applicant pled not guilty to both the conspiracy and larceny charges.  Also, the Court said that the convening authority approved 12 months (instead of 10) months) confinement.

11.  The convening authority’s final action stated the affirmed sentence was a bad conduct discharge, 10 months confinement, and reduction to E-1 and ordered the bad conduct discharge to be executed.

12.  On 17 March 1994, the applicant was discharged, pursuant to his sentence by court-martial, with a bad conduct discharge.  He had completed a total of      10 years and 7 days of creditable active service with 207 days of lost time due   to confinement.

13.  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.

14.  Army Regulation 635-200 governs the separation of enlisted personnel.  In pertinent part, it states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).  

15.  Army Regulation 635-200 states that a Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the Uniform Code of Military Justice (UCMJ), Article 15.  Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge.  An honorable discharge may be furnished when disqualifying entries in the Soldier’s military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service.  It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded.  

16.  Army Regulation 635-200 states that a general discharge is a separation from the Army under honorable conditions.  It is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

17.  Army Regulation 635-200 states that the quality of service of a Soldier on active duty or active duty for training is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline, regardless of whether the conduct is subject to UCMJ jurisdiction.  Characterization may be based on conduct in the civilian community; the burden is on the Soldier to demonstrate that such conduct did not adversely affect his or her service.

18.  The Manual for Courts-Martial, United States, provides for a maximum punishment of a dishonorable or bad conduct discharge, 5 years confinement, and total forfeitures of pay for larceny of property other than military property of a value of more than $100.00.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that the case of a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for or continue disability processing unless: (1) the investigation ends without charges; (2) the officer exercising proper court-martial jurisdiction dismisses the charges; (3) or the officer exercising proper court-martial jurisdiction prefers the charge for trial to a court-martial that cannot adjudge such a sentence.

20.  Title 38 of the Code of Federal Regulations, chapter 1, section 3.13(c), provides that, “Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military …service when the following conditions are met:…(2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that the charges of larceny and conspiracy should never have been filed because that was a matter between him and U. S. Air and was not service connected.  However, the Manual for Courts-Martial, United States, provides for judicial punishment for larceny of property other than military property (i.e., “not service connected”).  Rule for Courts-Martial 203 states that courts-martial may try any offense under the UCMJ, unless prohibited by the constitution.  The U. S. Supreme Court ruled in Solorio v. U. S., 483 U. S. 435 (1987), that the jurisdiction of courts-martial depends solely on the accused Soldier’s status as a person subject to the UCMJ, not on the service connection of the charged offense.  In accordance with Rule for Courts-Martial 202, the applicant as an active duty Soldier was clearly subject to the UCMJ.
2.  In addition, Army Regulation 635-200 states that the quality of service of a Soldier is affected adversely by conduct that is of a nature to bring discredit on the Army, regardless of whether the conduct is subject to UCMJ jurisdiction, and that characterization may be based on conduct in the civilian community.  The applicant’s conduct in this instance was such as to cause U. S. Air to complain to the Post Commander (i.e., to bring discredit on the Army).

3.  The applicant’s good conduct while in confinement is commendable, but was not more than was expected of a prisoner or of any other Soldier for that matter.  The applicant also contended that he received a certificate for completing the Larceny Offenders Class, even though he pled not guilty.  The available evidence of record shows that he may or may not have pled guilty to the larceny charge.

4.  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 characterized the misconduct for which the applicant was convicted.  Although the applicant contended that the penalty was harsh for a first-time offense after 10 years of service, he could have been sentenced to a dishonorable discharge and to 5 years of confinement.  It appears that the convening authority took his prior good service into consideration in approving only 10 months confinement when the adjudged sentence was 18 months.

5.  The applicant's contentions that he was not guilty of the offenses of which he was convicted relate to evidentiary matters that should have been raised by the applicant and conclusively adjudicated in the court-martial appellate process.  They furnish no basis for recharacterization of the discharge.

6.  The applicant stated that he had three reconstructive surgeries within his enlistments, that his injury is chronic, and that medications will be needed daily, with therapy, for life.  He contended that before the court-martial he had been recommended for a medical discharge.  Counsel stated that the applicant cannot receive DVA benefits for his service-connected injuries because of his bad conduct discharge.

7.  There is no evidence of record to show that the applicant ever appeared before a physical evaluation board.  It appears that because of his court-martial his physical disability processing was properly discontinued as required by Army Regulation 635-40.  However, the applicant would have been eligible for an honorable discharge on 28 August 1990, and his knee injury was incurred in February 1988.  It appears the DVA is statutorily required to treat him for any conditions that arose during his first period of service.  Eligibility for veterans' 

benefits does not fall within the purview of the Army, however.  He should contact a local office of the DVA to inform them, if necessary, of the applicable statute and request further assistance.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___    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.




      __           XXX_____
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070018596


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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