IN THE CASE OF:	  

		BOARD DATE:	       7 May 2009

		DOCKET NUMBER:  AR20090000702 


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 a general discharge (GD).

2.  The applicant states, in effect, that he is requesting a GD so that he can join the Army National Guard.  He adds that he made a mistake in the past; however, he has learned from it and has moved on.

3.  The applicant does not provide documents 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 available record shows he reenlisted in the Regular Army on 28 September 1987 after serving 2 years, 3 months, and 12 days of prior active service and 7 years, 4 months, and 19 days of prior inactive service.  His military occupational specialty was 92A (Automated Logistical Specialist).

3.  The applicant's record shows the highest rank he held while serving on active duty was sergeant/pay grade E-5.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  The applicant's military service records contain a copy of Headquarters, U.S. Army Garrison, Fort George G. Meade, Fort George G. Meade, Maryland, General Court-Martial Order Number 8, dated 19 September 1991.  This order shows the applicant was arraigned and tried before a general court-martial and documents the following charges, pleas, and findings:

	a.  Charge I, Article 86, Uniform Code of Military Justice (UCMJ), Specification:  Absent without leave from 22 February 1991 until 26 March 1991. 
The applicant entered a plea of guilty and was found guilty.

	b.  Charge II, Article 108, UCMJ:

		(1)  Specification 1:  Without proper authority sold government property, night vision goggles, of a value of approximately $6500.00 on or about 17 October 1990.  The applicant entered a plea of guilty and was found guilty.

		(2)  Specification 2:  Without proper authority sold government property, night vision goggles, of a value of approximately $6500.00 on or about 18 October 1990.  The applicant entered a plea of guilty and was found guilty.

		(3)  Specification 3:  Without proper authority sold government property, night vision goggles, of a value of approximately $6500.00 on or about 19 October 1990.  The applicant entered a plea of guilty and was found guilty.

	c.  Charge III, Article 121, UCMJ, Specification:  Larceny of Government property:  three night vision goggles, of an aggregate value of approximately $19500.00 on or between approximately 1 September 1990 and 17 October 1990.  The applicant entered a plea of guilty and was found guilty.

5.  On 19 July 1991, the applicant was sentenced to a reduction to pay grade 
E-1, a forfeiture of $650.00 pay per month for 36 months, confinement for a period of 36 months, and to be discharged from service with a BCD.  The sentence was approved, and except for the BCD, was ordered to be executed.

6.  On 22 October 1991, the U.S. Army Court of Military Review on consideration of the entire record, including consideration of the issue personally specified by the applicant, affirmed the findings of guilty and the sentence as approved by the convening authority as correct in law and fact.

7.  On 9 September 1993, the applicant was discharged with a BCD after completing a total of 3 years and 4 months and 27 days of military service.

8.  The applicant's military personnel records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 9 September 1993 with a BCD as a result of court-martial.  This document also shows the applicant had time lost under Title 10, U.S. Code, section 972, from 22 February 1991 through 25 March 1991 and from 26 March 1991 through 8 September 1993.

9.  The DD Form 214 also shows the authority for the applicant’s separation was Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3 (Character of Service/Description of Separation), section IV (Dishonorable and Bad Conduct Discharge).  At the time of his discharge the applicant had completed 3 years, 4 months, and 27 days of net active service during this period of service.

10.  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 BCD.  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.

11.  Army Regulation 635-200, 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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.


13.  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 request for an upgrade of his discharge was carefully considered and found to be without merit.  There is no evidence and the applicant has not presented any evidence 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.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  In addition, conviction and discharge were effected in accordance with applicable law and regulations and the applicant’s rights were protected throughout the court-martial process.

3. After a thorough and comprehensive review of the applicant’s military service record, it is concluded that based on the seriousness of the offenses for which he was convicted clemency would not be appropriate in this case.

4.  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.

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)                                         AR20090000702



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ABCMR Record of Proceedings (cont)                                         AR20090000702



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