IN THE CASE OF:	  

		BOARD DATE:	        11 DECEMBER 2008

		DOCKET NUMBER:  AR20080014423 


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 an honorable discharge.

2.  The applicant states that he deserves to have his discharge upgraded because he completed his first term of service but was held over for a court-martial.  He also states, in effect, that he still does not have a discharge document with his characterization of service or a true DD Form 214 (Certificate of Release or Discharge from Active Duty) for a benefit determination.

3.  The applicant provides his "Member-1" copy of his DD Form 214; a letter, dated 7 May 2008, from the Army Review Boards Agency Support Division in
St. Louis, Missouri; a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); and an Issues document from a self-help guide to discharge upgrading 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 records show that he enlisted in the Regular Army on 19 May 1992 for a period of 3 years, making his expiration of term of service (ETS) 18 May 1995.  He completed basic and advanced individual training and was awarded military occupational specialty 52C (Utilities Equipment Repairer).  After completing a tour in Germany from 17 November 1992 to 11 December 1993, he was reassigned to Fort Campbell, Kentucky in January 1994.  

3.  On 18 May 1995, the applicant was convicted by a general court-martial of larceny of military property between on or about 8 September 1994 and 
9 December 1994; selling of military property, valued over $100.00, without authorization on or about 8 September 1994 and on or about 9 September 1994; and being absent without leave from on or about 26 October 1994 until on or about 5 December 1994.  He was sentenced to a reduction in rank and pay grade from private first class (PFC)/E-3 to private (PV1)/E-1, forfeiture of $569.00 pay per month for 9 months, confinement for 9 months, and a bad conduct discharge.  However, only so much of the applicant's sentence as provided for reduction to PV1, forfeiture of $560.00 pay per month for 9 months, confinement for 8 months and 24 days, and a bad conduct discharge was approved and, except for his bad conduct discharge, was ordered to be executed.  The applicant was placed in military confinement on 18 May 1995, and was released from confinement on 22 December 1995.  He was then placed on involuntary excess leave pending appellate review of his case.

4.  On 18 April 1996, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence against the applicant.  

5.  On 10 January 1997, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial order.  Item 24 (Character of Service) of his DD Form 214 shows that he received a bad conduct discharge.  This document also shows, in pertinent part, that the narrative reason for his discharge was as a result of a court-martial. 

6.  Title 10, U.S. Code, section 1552, as amended does not permit any redress by this Board that would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.
7.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the policies and procedures 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.

8.  Paragraph 3-7b of the same regulation also 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.

9.  Army Regulation 635-200 has consistently provided that a member may be retained after his or her term of service has expired when an investigation of his or her conduct has been started with a view of trial by court-martial, charges have been preferred, or the member has been apprehended, arrested, confined, or otherwise restricted by the appropriate military authority.  

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant's contention that he completed his first term of service but was held over for a court-martial was considered.  However, 18 May 1995, the date of his court-martial conviction, was the last day of active duty of his 3-year enlistment in the Regular Army on 19 May 1992.  However, since he had 41 days of lost time that had to be made up, his adjusted ETS was actually 29 June 1995, not 18 May 1995.  It is also clear that charges had been preferred against him prior to his ETS, which authorized his retention beyond his ETS.  Therefore, his contention that he was "held over for a court-martial" is without merit.

3.  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.


4.  The applicant’s entire record of service was considered; however, the fact that the applicant was tried and convicted by a general court-martial for larceny of military property, two specifications of selling military property without authorization, and being absent without leave clearly shows that the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The evidence of record shows that the applicant was discharged pursuant to a duly reviewed and affirmed general court-martial order, and there is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  

5.  After a thorough review of the available records, there was no cause for clemency and an insufficient basis upon which to base an upgrade of the applicant’s bad conduct discharge to an honorable or general discharge.  In view of the foregoing, there is no basis for upgrading the applicant's discharge.

6.  The applicant contends that he still does not have a discharge document with his characterization of service or a true DD Form 214 for benefit determination.  However, he submitted the "Member – 1" copy of his DD Form 214, which is void of the specific information related to his discharge.   Although the applicant was on excess leave prior to his discharge, records show that the applicant's mailing address shown in item 19a (Mailing Address After Separation) of his DD Form 214 is the same mailing address provided by the applicant on his leave form when he signed out of his unit on excess leave.  Regardless of the disposition of the original mailing of his final DD Form 214, a copy from his official records with the requested information will be provided with the results of these Proceedings.

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.




      __________XXX____________
               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)                                         AR20080014423



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ABCMR Record of Proceedings (cont)                                         AR20080014423



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