IN THE CASE OF:	  

		BOARD DATE:	        16 June 2009

		DOCKET NUMBER:  AR20080014310 


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 (BCD) be upgraded to an honorable discharge.

2.  The applicant states, in effect, the crimes he committed do not justify the severity of the punishment he received.

3.  The applicant provides a copy of an Assignment of Error and Brief on Behalf of Applicant and a copy of a memorandum from the Review Boards Agency in support of this 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 records show that he enlisted in the Regular Army for a period of 3 years on 10 January 1986.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was private (PV1)/E-1.

3.  The applicant’s record of trial contains a copy of 8th Infantry Division, Germany, Special Court-Martial Order Number 47, dated 31 December 1986, which documents the following charges, pleas, and findings:

	a.  Charge I, Article 92, Uniform Code of Military Justice (UCMJ), with three specifications:  that on 29 August 1986, the applicant violated a general regulation by operating a privately owned vehicle (POV) without a U.S. Army Europe license; on the same date he violated a lawful general order by operating an unregistered POV; and on 28 August 1986, he violated a lawful general order by affixing license plates on a vehicle other than the vehicle for which the license plate was issued.  The applicant entered a plea of guilty and was found guilty.

	b.  Charge II, Article 121, UCMJ, with two specifications:  that on 28 August 1986, the applicant wrongfully appropriated property of the United States valued about $10.00; and that on 13 October 1986, the applicant committed larceny, which was property of the Army and Air Force Exchange Service valued at about $129.00.  The applicant entered a plea of guilty and was found guilty.

	c.  Additional charge, Article 134, UCMJ, with the specification that on 8 November 1986 the applicant was drunk and disorderly.  The applicant entered a plea of guilty and was found guilty.

	d.  On 1 December 1986, sentence was adjudged.  The applicant’s sentence was to be reduced to the grade of PV1/E-1, to forfeit $475.00 pay per month for a period of 4 months, to be confined for a period of 4 months, and to be discharged from the U.S. Army with a BCD.  (No previous convictions considered.)

	e.  On 31 December 1986, the convening authority approved only so much of the sentence as provided for the reduction to the grade of PV1/E-1, confinement for 3 months, forfeiture of $426.00 pay per month for a period of 3 months, and a BCD; ordered the sentence, except for the BCD, executed; directed that the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review; and ordered the applicant be confined pending completion of the appellate review.

4.  The applicant submitted a copy of his appellate brief submitted to the U.S. Army Court of Military Review which shows that the applicant requested that the Court set aside the sentence and authorize a rehearing.

5.  On 16 April 1987, the U.S. Army Court of Military Review affirmed the findings and sentence in this case.

6.  The applicant’s record of trial contains a copy of U.S. Army Armor Center, Fort Knox, Kentucky, Special Court-Martial Order Number 121, dated 28 July 1987.  This document shows, in pertinent part, the applicant's sentence was affirmed.  This document also shows that the provisions of Article 71(c) having been complied with and the applicant having served that portion of the sentence pertaining to confinement, the BCD was ordered duly executed.

7.  The applicant's military personnel records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 11 September 1987 with a BCD as a result of special court-martial.  This document also shows the applicant had time lost under Title 10, U.S. Code, section 972, from 1 December 1986 through 12 February 1987.  The DD Form 214 shows the authority for the applicant’s separation was Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3 (Character of Service/Description of Separation), section IV (Dishonorable and BCD).  At the time of his discharge the applicant had completed 1 year, 5 months, and 20 days of net active service.

8.  On 22 May 2007, the Army Discharge Review Board declined to process the applicant's petition for an upgrade his discharge because he submitted the application after the 15-year statutory period for appeals.

9.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552(f), the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction nor is the Board authorized to take action with respect to court-martial and related administrative records pertaining to court-martial cases.  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.  The Board also has the limited authority to correct records to accurately reflect appellate actions.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 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.

DISCUSSION AND CONCLUSIONS:

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

2.  The evidence of record shows the applicant was convicted by a special-martial and he received a BCD.  Trial by special court-martial was warranted by the serious nature of the offenses for which he was charged.  The sentence is commensurate with the misconduct of which the applicant was convicted.  The applicant’s service was not sufficiently meritorious to warrant granting clemency.

3.  After a thorough and comprehensive review of the applicant’s record of trial, it is concluded that based on the seriousness of the offense for which he was convicted, clemency would not be appropriate in this case.

4.  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 this requirement.

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)                                         AR20080014310



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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