IN THE CASE OF:	  

		BOARD DATE:	       23 JULY 2009

		DOCKET NUMBER:  AR20090004692 


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.

2.  The applicant states that he is having problems finding employment.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this 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.  After having had prior service, the applicant enlisted in the Regular Army on 
1 November 1988.  Upon completion of initial entry training, he was awarded military occupational specialty 92Y (Automated Logistical Specialist).  He was promoted to specialist, E-4, effective 1 May 1989.
3.  On 3 August 1992, the applicant was convicted, in accordance with his pleas, by a general court-martial of conspiracy to steal military property of a value of $12,819; larceny of military property of a value of $12,819; and of housebreaking on 1 January 1992.  He was sentenced to reduction to private/E-1, a forfeiture of all pay, to be discharged from the service with a bad conduct discharge, and to be confined for a period of 8 months.  

4.  Only so much of the sentence that provided for a bad conduct discharge, confinement for 8 months, a forfeiture of $400 pay per month for 8 months, and reduction to the rank of private, E-1, was approved.  The sentence, except for that part of the sentence extending to a bad conduct discharge, was ordered executed.

5.  On 5 November 1992, the U. S. Army Court of Military Review affirmed the findings of guilty and the applicant's sentence.

6.  The applicant was placed in confinement, on 5 August 1992, and he was released from confinement on 21 February 1993.  Effective 29 April 1993, he was placed on excess leave pending appellate review.  

7.  On 2 June 1993, the United States Court of Military Appeals denied the applicant's petition for a grant of review.

8.  On 2 June 1994, the applicant's bad conduct discharge was ordered executed.

9.  On 29 June 1994, the applicant was discharged, pursuant to his sentence by court-martial, with a bad conduct discharge.

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.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for employment or employment benefits.

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 evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090004692



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ABCMR Record of Proceedings (cont)                                         AR20090004692



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