IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20080020017 


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 be upgraded to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that he joined the Army to get away from the life he was living, but ended up being stationed in the same place and working with the same people he was trying to leave.  The applicant maintains that if he had been stationed somewhere else, his life would have been much better.  He states that he is trying to get his life together so that he can enlist back in the Army.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), resume, Certificate of Live Birth, Social Security Card, and his Virginia Driver's License 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 (RA) from Raleigh, North Carolina, on 21 April 1987.  After completing basic combat and advanced individual training he was awarded military occupational specialty (MOS) 94B (Food Service Specialist) and reassigned to Fort Bragg, North Carolina.

3.  The applicant's resume shows that he performed jobs as a Manufactory Technician, Assistant Manager, Telemarketer, Order Picker/Forklift Driver,   Material Handler, Supply Clerk, Machine Operator, and Brake Operator from November 1994 to June 2006.  Additionally, his resume indicated that he was  self-employed in his home improvement company from July 2002 to February 2004.

4.  General Court-Martial Order Number 21, dated 4 October 1988, shows the applicant was convicted by a general court-martial on 26 August 1988 for wrongfully receiving stolen property of a total value in excess of $100.00 from about November 1987 until 5 May 1988.  His punishment consisted of discharge from the service with a bad conduct discharge, forfeiture of all pay and allowances, confinement for 6 months, and reduction to the rank/grade of private (PV1)/E-1).

5.  The convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for six months, forfeiture of two-thirds pay per month for six months, and reduction to PV1, and except for the part of the sentence extending to a bad conduct discharge, ordered the sentence executed.

6.  On 18 January 1989, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.  The Court of Military Review modified the sentence to provide for forfeiture of $447.00 per month in lieu of two-thirds pay.

7.  The applicant's DD Form 214 shows that he received a bad conduct discharge on 10 May 1989.  The authority was listed as Army Regulation
635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV by reason of as a result of court-martial.  The applicant was credited with 1 year,
7 months and 18 days of total active service.

8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 3, section IV established policy and procedures for separating members with a dishonorable or bad conduct discharge.  Paragraph 3-11 provides that a bad conduct discharge will be given pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed sentence ordered duly executed.

9.  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.

10.  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 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 states that his discharge should be upgraded so that he may reenter the Army.  He also contends that the fact he was stationed at the same place he entered the Army led to his misconduct.  There is no evidence that indicates that the applicant experienced any more problems than other Soldiers entering the military service in or near their home towns who successfully complete their military service.  Therefore, the contention by the applicant that his proximity to his home led to his indiscipline is not sufficient as a basis for upgrading his discharge nor the fact that he wants to reenter the Army. 

2.  The applicant has failed to provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

3.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20080020017



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ABCMR Record of Proceedings (cont)                                         AR20080020017



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