IN THE CASE OF:	  

		BOARD DATE:	       30 JUNE 2009

		DOCKET NUMBER:  AR20090004030 


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 under other than honorable conditions or general under honorable conditions.

2.  The applicant states that he had an honorable term of active military service in the Army from 23 October 1986 through 23 July 1989 before immediately reenlisting and then deciding to make poor and irresponsible decisions that caused him to be convicted by a general court-martial in 1990 and discharged with a bad conduct discharge in 1992.  He contends that he has been discharged for 16 years and that he has become a productive member of society.  He would like to be considered for a discharge upgrade so he can pursue a better way of life for his family.

3.  The applicant provides a general court-martial order, dated 20 June 1990; a general court-martial order, dated 31 December 1991; a discharge order, dated 14 January 1992; a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 24 January 1992; and a copy of his DA Form 2-1 (Personnel Qualification Record) 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.  Having prior service in the Army National Guard, the applicant enlisted in the Regular Army on 23 October 1986 for a period of 3 years.  He trained as a personnel administration specialist and was honorably discharged on 23 July 1989 for immediate reenlistment.  He reenlisted on 24 July 1989 for a period of 3 years.

3.  On 18 May 1990, in accordance with his pleas, the applicant was convicted by a general court-martial of conspiring to commit larceny, larceny, and six specifications of selling military property.  He was sentenced to be reduced to pay grade E-1, to pay a fine of $3,692.00, to be confined for 2 years, and to be discharged from the service with a bad conduct discharge.  On 20 June 1990, the convening authority approved the sentence but suspended confinement in excess of 18 months for 12 months.

4.  The decision of the U.S. Army Court of Military Review is not available.  However, on 28 February 1991, the U.S. Court of Military Appeals denied the applicant’s petition for grant of review and on 31 December 1991 the convening authority ordered the bad conduct discharge to be executed, indicating the sentence was affirmed.

5.  Accordingly, the applicant was discharged with a bad conduct discharge on 24 January 1992 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial.  He had served a total of 4 years and 29 days of creditable active service with 548 days of lost time due to confinement.

6.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge 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.

7.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

8.  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.

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.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

2.  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.

3.  The applicant’s prior honorable service was noted.  However, his last enlistment included one general court-martial conviction and 548 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.



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.



      ___________XXX______________
                 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)                                         AR20090004030



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ABCMR Record of Proceedings (cont)                                         AR20090004030



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