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ARMY | BCMR | CY2008 | 20080000777
Original file (20080000777.txt) Auto-classification: Denied

	IN THE CASE OF:	  

	BOARD DATE:	  12 June 2008

	DOCKET NUMBER:  AR20080000777 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his bad conduct discharge be upgraded to honorable; the narrative reason changed to Convenience of the government or Secretarial Authority; and the reentry (RE) code be changed to a 1 or 2. 

2.  The applicant states, in effect, that he is making this request so that he may be able to reenter the military.

3.  The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214), letters requesting clemency, letters of support, and a statement of his service.

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.  On 22 September 1984, the applicant enlisted in the United States Army Reserve.  He completed his initial active duty for training and was awarded military occupational specialty (MOS) 94B (Cook). 

3.  On 23 March 1995, the applicant enlisted in the Regular Army.  He was assigned for duty as a food service specialist with the 497th Transportation Company at Fort Lewis, Washington.  

4.  During the period from March 1997 to March 1998, the applicant performed duty as a food service specialist with the 557th Military Police Company in the Republic of Korea.  He returned to the United States for duty at Fort Bragg, North Carolina.

5.  On 1 April 2000, the applicant was promoted to sergeant, pay grade E-5.

6.  On 26 October 2000, charges were preferred under the Uniform Code of Military Justice (UCMJ).   Charge I was for violation of Article 108 (one specification) for selling military property of the United States Government without proper authority.  Charge II was for violation of Article 134 (one specification) for wrongfully receiving stolen military property of the United States Government.  

7.  On 15 February 2001, before a Military Judge at a General Court-Martial, the applicant pled guilty to all charges and specifications.  

8.  The military judge accepted the applicant's plea and found him guilty of all charges and specifications.  The military Judge sentenced him to a reduction to pay grade E-1, confinement for 30 months, and a bad conduct discharge.

9.  On 29 May 2001, the Staff Judge Advocate, in a written review for the convening authority, summarized the evidence and trial discussion.  The Staff Judge Advocate recommended approval of the sentence. 

10.  On 24 August 2001, the convening authority approved only so much of the sentence as provided for reduction to the grade of E-1 and confinement for 
18 months, and except for that part extending to a bad conduct discharge, ordered the sentence executed. 

11.  On 16 April 2002, the United States Army Court of Criminal Appeals reviewed the entire record, including consideration of the applicant's contention that relief was warranted due to the 8-month period of post-trial processing, and held that the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, it affirmed the finding of guilty and the sentence as approved.

12.  General Court-Martial Order Number 279, United States Army Field Artillery Center and Fort Sill, Oklahoma, dated 14 November 2002, provided that the sentence to reduction to pay grade E-1, confinement for 18 months, and a bad conduct discharge, adjudged on 15 February 2001, had been affirmed.  Article 71(c), UCMJ, having been complied with, the bad conduct discharge was to be executed.

13.  The applicant's DD Form 214 shows that he was discharged on 7 February 2003 under the provisions of Army Regulation 635-200, Chapter 3, section IV and received a bad conduct characterization of service.  

14.  The letters of support submitted by the applicant, dated in 2001, were considered as part of a packet requesting clemency.  

DISCUSSION AND CONCLUSIONS:

1.  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 final discharge appropriately characterized the misconduct for which the applicant was convicted.

2.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

3.  In view of the above, the applicant's request should be denied.  

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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080000777





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ABCMR Record of Proceedings (cont)                                         AR20080000777



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