IN THE CASE OF:	  

		BOARD DATE:	  	  16 OCTOBER 2008

		DOCKET NUMBER:  AR20080009142 


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 that his bad conduct discharge (BCD) be upgraded.

2.  The applicant states, in effect, that after 16 years of loyal service and receiving a surplus of awards he believes he was treated unfairly.  The applicant states that the BCD was excessive and the punishment did not fit the crime.  He apologizes for the offense and any heartache it may have caused.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 9 September 1993 and a copy of his complete Official Military Personnel File (OMPF).

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 enlisted in the Regular Army on 1 July 1976.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 64C (Motor Transport Operator).  He was promoted to the rank and grade of Staff Sergeant (SSG)/E-6 on 1 February 1989.

3.  The applicant was honorably discharged on 1 April 1979 and immediately reenlisted on 2 April 1979.  He was honorably discharged on 3 June 1982 and immediately reenlisted on 4 June 1982.  He was honorably discharged on 
5 February 1985 and immediately reenlisted on 6 February 1985.  He was honorably discharged on 14 September 1989 and immediately reenlisted on 
15 September 1989.  

4.  On 7 February 1992, the applicant was convicted, pursuant to his pleas, by a general court-martial, of one specification of wrongfully transferring duty free or tax free goods and four specifications of signing a false official record.  His sentence consisted of a reduction to the grade of private/pay grade E-1, a forfeiture of $523.00 per month for six months, and a BCD.  

5.  On 29 September 1992, the U.S. Army Court of Military Review (USACMR) considered the applicant's appeal, dismissed specification 4 of charge II, but found that the remaining findings of guilty were correct.

6.  A memorandum, dated 16 December 1992, from the U. S. Army Judiciary shows that the applicant petitioned for a grant of review to the United States Court of Military Appeals (USCMA).  It appears that the USCMA denied the applicant's petition for review.

7.  Headquarters, U.S. Army Armor Center and Fort Knox General Court-Martial Order Number 101, dated 13 August 1993, directed that the bad conduct discharge be executed.

8.  On 9 September 1993, the applicant was discharged from the Army with a bad conduct discharge under the provisions of chapter 3 of Army Regulation 
635-200 (Personnel Separations), by reason of court-martial.  He completed 
3 years, 11 months, and 26 days of creditable active service on his last enlistment.  The applicant completed a total of 17 years and 28 days of creditable active service with no time lost.

9.  The Manual for Courts-Martial provides the maximum punishment for violations of Article 92 (failure to obey order or regulation): 1) Discharge: dishonorable discharge, 2) Forfeiture: all pay and allowances; and 3) Confinement: 2 years.  Article 107 (False official statement): 1) Discharge: dishonorable discharge, 2) Forfeiture: all pay and allowances; and                        3) confinement: 5 years.

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.

12.  In accordance with Title 10 of the United States Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction by a court-martial convened under the UCMJ.  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 evidence of record confirms that the applicant's trial by 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.

2.  By law, the Army Board of Correction for Military Records may not disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

3.  The applicant's entire record of service was considered in this case.  However, given the seriousness of the offenses for which he was convicted and his rank at the time, it is determined that his service was not sufficiently meritorious or mitigating to warrant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX_____  ____XX____  ____XX____  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.




      ______XXXX_ _   _______   ___
               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)                                         AR20080009142



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ABCMR Record of Proceedings (cont)                                         AR20080009142



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