IN THE CASE OF:	  

		BOARD DATE:	  23 December 2008

		DOCKET NUMBER:  AR20080015077 


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, he committed the offenses that led to his BCD when he was 19 years old.  He states that he wrote numerous bad checks over an extended period, which should be considered one offense, and he offered to pay back the money.  He states although he was negligent in financial matters, he is sorry for his actions and has lived with the BCD for more than 20 years. 

3.  The applicant provides no documentary evidence 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 record shows he enlisted in the Regular Army and entered active duty on 10 February 1987.  He successfully completed basic training at Fort Jackson, South Carolina, in April 1987, and was assigned to Redstone Arsenal, Alabama to attend military occupational specialty 55D (Explosive Ordnance Specialist) training.  He failed to complete MOS 55D training and was reassigned to Fort Sill, Oklahoma to attend field artillery AIT.  Upon completion of AIT he was awarded MOS 13B (Cannon Crewman) and he was assigned to Hawaii where he arrived for duty on 10 September 1987.  

3.  The applicant's record shows that he was advanced to private/E-2 (PV2) on 10 August 1987 and this is the highest rank he attained while serving on active duty.  He also earned the Army Service Ribbon.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  The applicant’s disciplinary history includes his receipt of a Letter of Reprimand (LOR) on 23 September 1987, for driving under the influence of alcohol, and his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:  3 December 1987, for use of a controlled substance; 12 February 1988, malingering; and 10 June 1988, for disobeying an order.  

5.  On 9 September 1988, a Bar to Reenlistment (DA Form 4126-R) was imposed on the applicant based on his extensive disciplinary record and his failure to improve in spite of NJP, numerous counseling, and a warning letter from the Deputy Installation Commander.  

6.  On 27 October 1988, a special court-martial (SPCM) found the applicant guilty, pursuant to his pleas, of violating Articles 123a of the UCMJ by writing 
6 bad checks from 15 April through 3 July 1988; and of violating Article 134 of the UCMJ by writing 51 bad checks from 25 March through 14 April 1988.  The sentence imposed by the Military Judge was a reduction to private (PV1)/E-1, a forfeiture of $447.00 per month for 6 months, confinement for 1 month, and a BCD. 

7.  On 15 November 1988, the SPCM approved the sentence in Headquarters, 25th Infantry Division (Light), Schofield Barracks, Hawaii, SPCM Order Number 28, and directed that all but the BCD portion of the sentence be executed.  

8.  On 26 April 1989, the United States Army Court of Military Review affirmed the findings of guilty and the sentence in the applicant’s case.

9.  SPCM Order Number 159, dated 2 October 1989, issued by Headquarters, United States Armor Center and Fort Knox, Fort Knox, Kentucky, Article 71(c) of the UCMJ having been complied with, directed that the BCD portion of the applicant’s sentence be executed.  On 13 November 1989, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed a total of 2 years, 
8 months, and 9 days of creditable active military service.  

10.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 

11.  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 bad conduct discharge.  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.

12.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States 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 BCD should be upgraded because he is sorry for his offenses and has lived with the BCD for more than 20 years has been carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief. 

2.  The evidence of record reveals no error or injustice related to the applicant’s 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.  The evidence of record shows that in addition to the SPCM conviction that resulted in the applicant's BCD, he also had an extensive disciplinary record that included his acceptance of NJP on three separate occasions and his receipt of a LOR.  Given the gravity of the offenses that resulted in his SPCM conviction and BCD, and based on his prior disciplinary history, 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)                                         AR20080015077



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ABCMR Record of Proceedings (cont)                                         AR20080015077



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