IN THE CASE OF:	  

		BOARD DATE:	  30 June 2009

		DOCKET NUMBER:  AR20090001716 


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 a fully honorable discharge (HD).

2.  The applicant states, in effect, that prior to entering the military, he attended school and graduated without using drugs, alcohol, or getting into trouble of any kind with the police.  He also states that he served as a military policeman (MP) on active duty and that he was an exemplary Soldier who earned multiple decorations and awards.  He indicates that in August 2000, while on patrol, he momentarily lost control of his vehicle that caused an accident resulting in the loss of life of a fellow Soldier and friend.  The applicant also states that he has always taken full responsibility for the accident and completed the punishment given him.  

3.  The applicant further states that since his discharge, he has completed his education, married, had children, been employed, attended church regularly, has had no other legal problems, and has been a good upstanding person.  He indicates that he is remorseful and continually suffers from the guilt of the death of his friend and the sorrow and grief he caused to both his friends and the families.  The applicant finally indicates that the parents of his deceased friend have forgiven him, and he respectfully asks that his BCD be upgraded to an HD.

4.  The applicant provides a computer printout, two self-authored statements, and eight 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 records show he enlisted in the Army and entered active duty on 16 January 1997, and was trained in and awarded military occupational specialty (MOS) 95B (MP).  It also shows the highest rank he attained while serving on active duty was specialist/E-4 (SPC).  

3.  On 28 January 1998, the applicant was awarded the Army Achievement Medal (AAM) for meritorious achievement as a member of the Military Police Photo Identification Event in support of the National Scout Jamboree during the period 23 July – 7 August 1997.

4.  On 2 November 1998, the applicant was awarded the AAM with 1st Oak Leaf Cluster (OLC) for meritorious achievement in supporting the MP Corps Regiment’s 57th Anniversary during the period 3 August to 30 September 1998.

5.  On 16 April 1999, the applicant was awarded the AAM with 2nd OLC for meritorious achievement as an MP while assigned to the 209th MP Company in support of Operation Desert Thunder, Kuwait during the period 23 February – 30 March 1998.

6.  The applicant was awarded the AAM with 3rd OLC for meritorious achievement while assigned to the 209th MP Company in recognition of his outstanding performance of duty which contributed enormously to the success of the unit's mission during the period 25 May 1997 – 5 May 1999.


7.  On 22 March 2000, the 5th Personnel Services Battalion issued Permanent Orders Number 082-172.  These orders announced the applicant’s award of the Army Good Conduct Medal (AGCM) for his exemplary behavior, efficiency, and fidelity in active federal military service for the period 16 January 1997 to 15 January 2000.

8.  The applicant’s military record also shows that he earned Joint Meritorious Unit Award (JMUA), National Defense Service Medal (NDSM), and Armed Forces Expeditionary Medal (AFEM) during his tenure on active duty.

9.  On 1 May 2001, pursuant to his plea, a General Court-Martial (GCM) found the applicant not guilty of violating Article 119 (involuntary manslaughter through culpable negligence) of the Uniform Code of Military Justice (UCMJ) on 9 August 2000; but guilty of the lesser included offense of violating Article 134 (negligent homicide) of the UCMJ.  The resultant sentence was a reduction to private/E-1 (PV1), confinement for sixteen months, and a BCD.

10.  On 18 July 2001, in Joint Readiness Training Center and Fort Polk,
Fort Polk, Louisiana, GCM Order Number 17, the GCM convening authority approved only so much of the sentence that provided for the applicant’s reduction to PV1, confinement for 8 months, and a BCD, and ordered that the sentence be executed with the exception of the BCD.

11.  Headquarters, United States Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, GCM 189, dated 6 March 2003, ordered, Article 71c having been complied with, that the unexecuted portion of the applicant's sentence pertaining to the BCD be executed.  On 30 January 2004, the applicant was discharged accordingly.  

12.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant at the time of his discharge on 30 January 2004 shows he was discharged under the provisions of Chapter 3, Army Regulation 635-200, by reason of court martial.  This document also shows that he had completed a total of 6 years, 5 months, and 29 days of creditable active military service and that he had accrued 196 days of time lost due to confinement. 

13.  The applicant provides a letter from the mother of the Soldier who was killed in the vehicle accident with the applicant, which was written just over a year after the accident.  In this letter, the mother of the deceased Soldier thanks the applicant for his letter and indicates that she prays that he will always keep in touch with her.  She indicates her thankfulness for the friendship between the applicant and her son and talks about how good things can come from bad things.  She also reminisces about multiple events, some of which include her son and the applicant.  She encourages the applicant to be strong in the Lord and indicates that she will send him some pictures of her son.  She finally asks him to send her some photographs of himself and indicates that she will keep in touch with him as long as she can.

14.  The applicant provides a letter of encouragement to him from members of the deceased Soldier's family, in which family members encourage him to be strong and to understand that God allows events to happen in our lives and does not make mistakes.  He also provides letters from his wife, parents, sister, senior pastor and others, who all attest to his outstanding character and support his request for an upgrade of his discharge.  

15.  Army Regulation 635-200 (Personnel Separations) 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 bad conduct discharge.  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 BCD portion of the sentence is ordered duly executed.  

16.  Army Regulation 635-200 defines an under other than honorable conditions discharge (UOTHC) as an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial.  Paragraph 3-7a provides that an HD 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.  Paragraph 3-7b provides that a general, under honorable conditions discharge (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.  

17.  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’s request that his discharge be upgraded was carefully considered and clemency appears to be appropriate as a matter of equity.  

2.  Although the applicant's trial by court-martial was warranted based on the offense he committed, the record clearly shows he completed the punishment imposed and has continued to be remorseful for his actions.  Further, his post service conduct is noteworthy, as evidenced by the supporting letters provided, and he has continued to make amends for his offense by staying in contact with the family of the Soldier who lost his life in the accident that resulted in the applicant's court-martial conviction and BCD.  The applicant's genuine remorse, coupled with his excellent record of service prior to the incident, as evidenced by the numerous awards he earned for meritorious achievement and service, would appear to support clemency in this case.  

3.  Although his conduct clearly diminished his overall record of service below that meriting a fully honorable discharge, it would be appropriate and serve the interest of equity and compassion to grant clemency in this case by upgrading the applicant's BCD to a general, under honorable conditions discharge (GD).  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the individual concerned received a general, under honorable conditions discharge on 30 January 2004, in lieu of the bad conduct discharge of the same date he now holds, and by providing him a corrected DD Form 214 that reflects this change. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to granting the applicant an  honorable discharge.




      _______ _ 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)                                         AR20090001716



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ABCMR Record of Proceedings (cont)                                         AR20090001716



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