BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20090003188 


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 to an honorable discharge.

2.  The applicant states he made mistakes that led to a reduction of rank and a BCD while he was at a young age in the armed forces.  He contends that this was one isolated incident for which he was punished several times by his command.  Since that time, he has taken responsibility for his actions.  He now feels that he can be an asset to his country if he is allowed to return to the military.  

3.  The applicant provides no additional 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 enlisted in the Regular Army (RA) on 10 September 1993 for a period of three years.  His highest rank/grade held was private first class (PFC)/E-3.  He served in Korea from February 1994 to February 1995.  

3.  On 21 November 1995, the applicant was found guilty pursuant to his pleas by a general court-martial of four specifications of larceny, three specifications of forgery, and two specifications of false swearing.  He was also found guilty of additional charges of making a false official statement, wrongful appropriation of a U.S. Armed Forces Identification Card, larceny, and forgery.  He was sentenced to a reduction to the rank/grade of private (PV1)/E-1, a forfeiture of $600.00 pay per month for 11 months, confinement for 11 months, and to be discharged from the service with a BCD.

4.  On 16 February 1996, the convening authority approved the sentence and, except for that portion extending to a BCD, ordered it to be executed.  

5.  On 1 May 1996, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  The BCD was ordered to be executed on 22 May 1997.

6.  The applicant was accordingly discharged on 16 July 1997 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV, as a result of court-martial.  He completed a total of 3 years, 1 month, and 2 days of creditable active service with 275 days of lost time due to confinement.

7.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

8.  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.  

9.  Army Regulation 635-200, paragraph 3-7b, 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.

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 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 contends that he had one isolated incident for which he was punished several times by his command.  

2.  The applicant’s record of service shows he was convicted by a general 
court-martial of four specifications of larceny, three specifications of forgery, and two specifications of false swearing.  He was also found guilty of additional charges of making a false official statement, wrongful appropriation of a U.S. Armed Forces Identification Card, larceny, and forgery.  

3.  Based on the seriousness of the misconduct for which the applicant was convicted, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting the applicant's requested relief.

4.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  The 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.

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)                                         AR20090003188



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ABCMR Record of Proceedings (cont)                                         AR20090003188



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