IN THE CASE OF:	  

		BOARD DATE:	  19 March 2009

		DOCKET NUMBER:  AR20080019064 


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) to an honorable discharge (HD).

2.  The applicant states, in effect, that his childhood was troubled.  He also states that accusations against him of assault, attempted larceny, and possession of distribution of a controlled substance resulted in his BCD while many others who committed similar offenses were only punished under Article 15 of the Uniform Code of Military Justice (UCMJ).  He admits to making a terrible mistake for which he is truly sorry and requests forgiveness and an upgrade of his discharge. He further states that he has Gulf War Syndrome.

3.  The applicant provides a self-authored statement and six third-party letters 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 record shows he enlisted in the Regular Army and entered active duty on 19 October 1990.  He was trained in, awarded, and served in military occupational specialty (MOS) 19D (Cavalry Scout).  His DA Form 2-1 (Personnel Qualification Record) shows, in Item 18 (Appointments and Reductions), that he attained the rank of private first class (PFC) on 1 November 1991, and that this is the highest rank he attained while serving on active duty.  His record also shows that he was reduced to the rank of private/E-1 on 6 January 1993.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

3.  The applicant's record is void of the facts and circumstances surrounding his initial general court-martial (GCM) conviction and does not include the initial GCM orders.  The record does contain Headquarters, United States Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, GCM Order Number 28, dated 4 June 1993, which finally affirmed the applicant's GCM conviction and sentence, which included a forfeiture of all pay and allowances, confinement for 1 year, and a BCD, as promulgated in Headquarters, 1st Armored Division, GCM Order Number 10, dated 3 March 1993.  These orders also directed, Article 71c having been complied with, that the BCD portion of the applicant's sentence be duly executed.  On 28 June 1993, the remaining unexecuted portion of the sentence to confinement was remitted.

4.  On 29 June 1993, the applicant was discharged from active duty, by reason of court-martial, and received a BCD after completing a total of 2 years, 2 months, and 18 days of creditable active military service.

5.  The applicant provides six letters of support from his mother and five friends, who all indicate he has excellent character traits and support his request for an upgrade of his discharge.  His mother also confirms his tragic childhood experiences.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the policies and procedures for separating members with a dishonorable or BCD.  It provides, 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 the affirmed sentence ordered duly executed.

7.  Paragraph 3-7a of the separations regulation 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

8.  Paragraph 3-7b of the separations regulation 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.  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 to an HD because of his unfortunate childhood experiences, his punishment was greater than other Soldiers who committed similar offenses, and because he has Gulf War Syndrome has been carefully considered.  However, there is insufficient evidence to support these claims.

2.  Although the specifics charges for which the applicant was convicted are not on file, he admits in his application that the offenses he committed that led to BCD included assault, attempted larceny, and possession and distribution of a controlled substance.  Further, the record confirms his conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  The record further confirms that the applicant was only discharged after completion of the entire appellate process and only after his sentence was affirmed by the appropriate appellate court.


3.  By law, any redress by this Board of the finality of a court-martial conviction
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.  Although the applicant's post service character, as outlined in the supporting third-party statements, is noteworthy, given his record of undistinguished service and the seriousness of the offenses for which he was convicted, as he outlines them in his self-authored statement, there is an insufficient evidentiary basis to support clemency in this case.

4.  Additionally, the applicant has not submitted evidence that show he was treated differently than other Soldiers.  Nor has he provided any evidence that show Gulf War Syndrome contributed to his misconduct.

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 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)                                         AR20080019064



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ABCMR Record of Proceedings (cont)                                         AR20080019064


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