IN THE CASE OF:	  

		BOARD DATE:	        19 MARCH 2009

		DOCKET NUMBER:  AR20080018652 


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 that he learned his lesson.  He claims he was very young and did not take the military seriously.  He served his country and he feels he should be allowed to receive some type of benefits.  He has a family now and needs some assistance in providing them with a stable foundation.  Changing the status of his discharge will assist him in accomplishing this task.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a supplemental letter; and four character references 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 enlisted in the Regular Army on 8 October 1985 at 17 years of age.  Upon completion of one station unit training (OSUT) at Fort Leonard Wood, MO, he was awarded military occupational specialty 12B (combat engineer).  He was assigned to Germany in February 1986.  

3.  Headquarters, 3rd Armored Division Special Court-Martial Order Number 82, dated 13 November 1986, shows the applicant was found guilty, pursuant to his pleas by a special court-martial, on 22 May 1986, of failing to go to his appointed place of duty, disobeying a lawful order from a superior noncommissioned officer, and two specifications of larceny.  He was sentenced to a forfeiture of $426.00 pay for 3 months, confinement for 3 months, and to be discharged from the service with a BCD.  The convening authority approved the sentence.  

4.  On an unknown date, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.  The BCD was ordered to be executed on 30 April 1987.  Headquarters, U.S. Army Training Center and Fort Dix, NJ, Special Court-Martial Order Number 34, dated 30 April 1987, indicates that Special Court-Martial Order Number 82, dated 13 November 1986, was corrected by a U.S. Army Court of Military Review Notice of Court-Martial Order Correction, dated 30 January 1987.  The details of this correction are not available.  

5.  The applicant was discharged on 8 June 1987 under the provisions of Army Regulation 635-200, chapter 3, Section IV as a result of court-martial.  He completed 1 year, 5 months, and 15 days of creditable active service with 76 days of lost time due to being in confinement.

6.  The applicant provided statements in support of his claim.  He stated, in effect, that he entered the Army after he graduated from high school in 1985 at 17 years of age.  He admitted that he was not open to receive the training and principles the armed forces offered him.  He entered the Army without respect for it or himself.  He also admitted he made several unwise and illogical errors of judgment and he eventually received “four different Article 15 sanctions.”  He spent a total of 6 months incarcerated.  The applicant expressed that he has resided in Georgia for the last 14 years and has a lucrative and respectable business as an electrical contractor.  He stated he is currently in the process of getting married and must provide financial security for his new family.  

7.  The applicant also provided four character references.  The individuals described the applicant as being a moral, trustworthy, hardworking man who deserves another chance.  He was also described as having excellent work ethics.  

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

9.  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.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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, paragraph 3-7b, 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 contentions that he was very young at the time and that he served his country and should receive some type of benefits to provide for his family were considered.  However, these factors are not sufficiently mitigating to warrant relief.  

2.  The applicant’s trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant’s record of service included one special court-martial conviction for failing to go to his appointed place of duty, disobeying a lawful order from a superior noncommissioned officer, and two specifications of larceny.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

4.  The applicant's statements and the character references were reviewed carefully.  The applicant’s post-service conduct is commendable; however, these facts do not warrant the relief requested.  

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)                                         AR20080018652



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ABCMR Record of Proceedings (cont)                                         AR20080018652



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