IN THE CASE OF:	

		BOARD DATE:	  9 December 2008

		DOCKET NUMBER:  AR20080015486 


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 be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he realizes his mistake.  He has served his time and paid restitution in the amount of $9,000.00 and he believes that he was discriminated against in the final decision of his trial.  He states that his chain of command eagerly testified on his behalf pleading for leniency due to his good moral character prior to the incident.  His separation document (DD Form 214) attests to his awards and he also noted that he was only found guilty of one of three charges.  He states that he always felt he deserved an honorable discharge.

3.  The applicant provides a copy of his DD Form 214, Department of the Army Report of Result of Trial, four character reference statements, Certificate of Award for the Army Commendation Medal, two Certificates of Award for the Army Achievement Medal, and a letter from the Guam Veterans Affairs Office dated 
20 August 2008.

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 record shows he enlisted in the Regular Army on  
20 October 1981 for 4 years.  He completed the necessary training and was awarded the military occupational specialty (MOS) 63H (Track Vehicle Repairer).  He reenlisted on 16 October 1985.  His highest pay grade held on active duty was specialist/E-4.

3.  On 6 October 1987, the applicant was convicted by a general court-martial of 28 specifications for wrongfully and unlawfully making and uttering checks with insufficient funds.  His sentence consisted of reduction to private/pay grade  
E-1, a forfeiture of all pay and allowances, confinement for 6 months, and a bad conduct discharge.  His sentence was approved and except for the bad conduct discharge was ordered executed.

4.  On 29 January 1988, the United States Army Court of Military Review (ACMR) affirmed the court-martial findings of guilty and the sentence.

5.  Department of the Army Correctional Activity, Fort Riley, Kansas, General Court-Martial Order Number 364 dated 4 June 1988, shows that the sentence was finally affirmed.  Article 71(c) having been complied with, the convening authority ordered the bad conduct discharge to be executed.

6.  On 6 July 1988, the applicant was discharged as a result of a court-martial and was issued a Bad Conduct Discharge Certificate.  He had completed a total of 6 years, 3 month, and 18 days of active service.  He accrued 147 days of lost time.

7.  The character statements that the applicant submitted describe the applicant as a quiet person and a certified mechanic in his community who is always willing to assist anyone.  He is a good law-abiding citizen and a person who is not known to create any problems.  He is a "jack of all trades" and would be an asset to any organization.

8.  Army Regulation 635-200 (Personnel Separation), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter  
3 establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and the appellate review must be completed and the affirmed sentence must be ordered duly executed.

9.  Court-martial convictions stand as adjudged or as modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, ABCMR 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 contends that his bad conduct discharge should be upgraded to an honorable discharge.

2.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  He was convicted at a general court-martial of 28 specifications of wrongfully and unlawfully making and uttering checks with insufficient funds and sentenced to a bad conduct discharge.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.
As such, the bad conduct discharge was the appropriate discharge.

4.  His personal statement and character reference statements that were submitted were considered.  However, those statements contain no matters of mitigation of such weight that would warrant upgrading a properly issued discharge.

5.  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 sufficient evidence that would satisfy this requirement or to show clemency is warranted.






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)                                         AR20080015486



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ABCMR Record of Proceedings (cont)                                         AR20080015486



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