BOARD DATE:	  26 August 2009

		DOCKET NUMBER:  AR20090002971 


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 general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that he and another Soldier changed things around in two platoons as a joke and that the other Soldier was not punished, while he was confined for a year.  He indicates he has paid dearly for and regrets his actions.  He also states that his BCD has had detrimental effects on his chances to acquire better employment.

3.  The applicant provides a self-authored statement in support of his request.

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 that he first enlisted in the Regular Army (RA) and entered active duty on 1 October 1986.  He completed basic combat training at Fort Dix, NJ, and advanced individual training (AIT) at Fort Eustis, VA.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 68B (Aircraft Power Plant Repairer).

3.  On 5 November 1992, a General Court-Martial (GCM) found the applicant guilty, pursuant to his pleas, of violating the following Articles of the Uniform Code of Military Justice (UCMJ) as indicated:  Article 81, by conspiring to commit an offense of housebreaking and larceny and unlawfully entering a storage conex and stealing military property valued at more than $100.00 on or between
1 January and 1 May 1992; Article 121, by stealing property of the U.S. Army valued at more than $100.00 on or between 1 January 1992 and 1 May 1992; and Article 130, by unlawfully entering a storage conex with the intent to commit a larceny on or between 1 January and 1 May 1992.  The sentence imposed by the military judge was a forfeiture of $250.00 per month for 12 months, confinement for 1 year, reduction to private (PV1)/E-1, and a BCD.

4.  On 29 January 1993, in United States Army Transportation Center, Fort Eustis, VA, GCM Order Number 4, the GCM convening authority approved only so much of the sentence that provided for a forfeiture of $250.00 pay per month for 8 months, confinement for 8 months, reduction to PV1, and a BCD.  The GCM convening authority also directed that, except for the part of the sentence extending to a BCD, the sentence be executed.

5.  United States Army Transportation Center, Fort Eustis, GCM Order Number 12, dated 28 October 1993, directed, Article 71(c) of the UCMJ having been complied with, that the BCD portion of the sentence be duly executed.  On
21 January 1994, the applicant was discharged accordingly.  

6.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge on 21 January 1994 shows he completed a total of 6 years, 9 months, and 3 days of creditable active military service and that he had 198 days of time lost due to confinement.  It also shows he was separated, in the rank of PV1, under the provisions of chapter 3, section IV, Army Regulation 635-200, by reason of court-martial and that he received a BCD.

7.  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 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.

8.  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.

9.  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 contention that his BCD should be upgraded to a GD because he was punished more severely than the other Soldier involved in the actions that led to his discharge was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge, and although he now regrets the actions that led to his BCD he does not deny committing the offenses of which he was convicted.  Given the gravity of the offenses that resulted in his GCM conviction and BCD, there is an insufficient evidentiary basis to support clemency in this case. 

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  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)                                         AR20090002971



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ABCMR Record of Proceedings (cont)                                         AR20090002971



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