IN THE CASE OF:	

		BOARD DATE:	3 September 2009    

		DOCKET NUMBER:  AR20090002339 


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 that his bad conduct discharge (BCD) be upgraded.

2.  The applicant states the incident that led to his court-martial was an isolated occurrence in an otherwise perfect 30-month period of service.  While he admits to having made a mistake, he believes the punishment was too severe.  

3.  The applicant provides no supporting documentation.

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 (RA) on 13 March 1986.  He completed training and he was awarded military occupational specialty (MOS) 52C (Utility Equipment Repairman).
3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) from 12 through 16 November 1987.  What action, if any, that may have been taken for this AWOL offense is not of record.  

4.  On 16 May 1988, court-martial charges were preferred against the applicant for theft of a government grinding kit and conspiracy to sell the same.

5.  The record of trial shows that on 12 January 1988 the applicant took a grinding kit, valued at $868.05, from the maintenance shop and hid it in an adjacent field.  It was his intent to use it as collateral for repairs to his personal vehicle.  When the offer of using the kit as collateral failed, on 16 January 1988, he and another Soldier took the kit out of state and sold it for $200.00.  During his trial, a number of personnel offered favorable testimony as to the applicant's duty performance and work ethics.  His supervisors recommended that the applicant be retained and considered him to have good rehabilitation potential.  The maximum penalty for the charges to which the applicant pled guilty are a BCD, forfeiture of two-thirds pay per month for 6 months, confinement for 6 months, and reduction to pay grade E-1.

6.  On 29 July 1988 the applicant entered into a pretrial agreement to plead guilty so long as the approved sentence did not exceed confinement for two months, forfeiture of two-thirds pay per month for two months, and a BCD.  

7.  On 3 August 1988, a special court-martial, in accordance with his pleas and agreement, found the applicant guilty of larceny of government property and conspiracy to sell government property.  The adjudged sentence was reduction to pay grade E-1 and a BCD.  The judge noted that this sentence was less than the plea agreement.

8.  On 25 August 1988 the applicant requested and was granted excess leave pending appellate review.  He further requested discharge in absentia.

9.  On 30 August 1988, the court-martial authority approved the findings and sentence and, except for the BCD, ordered the sentence be executed.

10.  The Army Court of Military Review reviewed the applicant's case and affirmed the court-martial findings and sentence on 29 September 1988.

11.  On 23 June 1989, the U.S. Court of Military Appeals denied the applicant's petition to review his case. 

12.  Headquarters, Fort Bragg Special Court-Martial Order Number 11, dated 1 August 1989, directed that the BCD be executed.  
13.  The applicant was subsequently discharged on 4 June 1992 with a BCD.  The record contains no explanation for the delay between the date of the discharge order and his actual date of discharge.

14.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had 5 years, 5 months, and 24 days of creditable service with 272 days of time lost; and 1,299 days of excess leave.

15.  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 the incident that led to his court-martial was an isolated event in an otherwise perfect 30-month period of service.  While he admits to having made a mistake, he believes the punishment was too severe.  

2.  The applicant's contention that the court-martial sentence was too harsh has no constructive merit.  He received a sentence that was not only less than the maximum allowable, but it was also less than what he requested in his pretrial plea agreement. 

3.  Additionally, the applicant did not have a perfect record for 30 months prior to the theft.  He was AWOL for 5 days after only 20 months of service.  

4.  The favorable opinions of his superiors and co-workers were considered for both the sentencing determination and his appellate review and the applicant has provided no new argument or documentation to show that the sentence was unjust.

5.  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.

6.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if 
clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20090002339



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ABCMR Record of Proceedings (cont)                                         AR20090002339



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