IN THE CASE OF:	  

		BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090002702 


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 be upgraded to an honorable discharge.

2.  The applicant states he is now living a very positive life with two children and he needs an upgrade of his discharge to get a better job.

3.  The applicant provides no additional evidence or official documentation 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 personnel records show he enlisted in the Regular Army on 27 April 1989 for a period of 4 years.  He completed basic combat training and advanced individual training and he was awarded the military occupational specialty of 19D (Cavalry Scout).

3.  On 6 September 1989, the applicant was assigned to Headquarters and Headquarters Company, 4th Battalion, 66th Armor, Aschaffenburg, Germany.  The highest rank the applicant held was private/pay grade E-1.

4.  On 30 April 1990, the applicant was convicted by a general court-martial of the following offenses:  He pled guilty and he was found guilty of three specifications of stealing personal checks from other Soldiers; stealing an Armed Forces Identification Card (DD Form 21A); three specifications of stealing currency of a value of $110, $130, and $100, the property of the Army and Air Force Exchange Services; and stealing currency of a value of $130, the property of another Soldier.  His sentence consisted of a forfeiture of all pay and allowances, confinement for 4 years, and a bad conduct discharge.  

5.  On 1 June 1990, the convening authority approved only so much of the applicant's sentence that provided for a forfeiture of all pay and allowances, confinement for 40 months, and a bad conduct discharge.

6.  On 16 January 1991, the United States Army Court of Military Review affirmed the findings of guilty and the sentence as approved by the convening authority.

7.  On 1 November 1991, the applicant's bad conduct discharge was ordered to be executed.  The order erroneously stated "dishonorable" discharge.

8.  On 29 November 1991, the applicant was discharged as a result of a court-martial conviction.  His completed 1 year and 3 days of active duty service and he was issued a bad conduct discharge.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge 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.


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 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.

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

12.  Army Regulation 635-200 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he has two children, that he is living a positive life, and that he needs an honorable discharge to get a better job.

2.  The evidence shows the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  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.  

4.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or significant achievement.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request at this time.  

5.  Records are not corrected solely for the purpose of establishing eligibility for benefits from another agency and good post service conduct alone is not sufficiently mitigating to upgrade a properly issued discharge.  

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20090002702



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ABCMR Record of Proceedings (cont)                                         AR20090002702



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