IN THE CASE OF:
BOARD DATE: 30 December 2008
DOCKET NUMBER: AR20080014625
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, an upgrade of his bad conduct discharge (BCD).
2. The applicant states, in effect, that the BCD should be vacated or set aside. He adds that it has been almost 8 years since his conviction, and he would like to continue his life by excelling in college.
3. The applicant does not provide documents 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 applicants 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 applicants 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 available record shows he enlisted in the Regular Army and entered active duty on 3 June 1997, and was trained in and awarded military occupational specialty (MOS) 11B (Infantryman). His record documents no acts of valor, significant achievement, or service warranting special recognition.
3. On 16 September 1998, the applicant was convicted by a General Court-Martial of one specification of conspiring to commit a burglary; one specification of the wrong use of lysergic acid diethylamide (LSD); one specification of the wrongful use of marijuana; four specifications of larceny; three specifications of making bad checks; one specification of unlawfully breaking and entering a barracks room; one specification of unlawfully influencing a witness by means of bribery; and one specification of breaking restriction. The applicant was sentenced to confinement at hard labor for 5 years, forfeitures of all pay and allowances and to be discharged from the service with a BCD. On 24 February 1999, the convening authority approved only so much of the sentence for a BCD, total forfeitures of all pay and allowances and confinement for 30 month. The findings and sentence were affirmed and executed.
4. On 27 June 2003, the applicant was discharged with a BCD after completing a total of 1 year, 2 months, and 19 days of creditable active military service.
5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 provides the policies and procedures for separating members with a dishonorable or a BCD. It stipulates, in pertinent part, that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.
6. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his record should be vacated or set aside because of time was carefully considered and found to be without merit. There is no evidence and the applicant has not presented any evidence to support granting the requested relief.
2. The evidence of record reveals no error or injustice related to the applicants court-martial and/or his subsequent discharge. By law, any redress by this Board
of the finality of a court-martial conviction under the UCMJ, is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.
3. His record documents no acts of valor, significant achievement, or service warranting special recognition, and there is an insufficient evidentiary basis to support clemency 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) AR20080014625
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