IN THE CASE OF:	

		BOARD DATE:	       27 AUGUST 2009

		DOCKET NUMBER:  AR20090005659 


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 dishonorable discharge (DD) be upgraded to a general under honorable conditions discharge (GD).

2.  The applicant states, in effect, that it has been 27 years since his discharge and his entire family served in the military.  He further states he would like his DD upgraded to a GD so he may receive his benefits from the Department of Veterans Affairs (VA).

3.  The applicant provides no 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 records show he enlisted in the Regular Army and entered active duty on 12 April 1988.  He was trained in and awarded military occupational specialty 94B (Food Specialist).  His record shows he attained the rank of specialist/pay grade E-4 on 1 March 1990 and this is the highest rank he attained while serving on active duty.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows that during his tenure on active duty he earned the National Defense Service Medal, Army Service Ribbon, and Overseas Service Ribbon.  His record documents no acts of valor or significant achievement.

4.  On 21 March 1991, the unit commander prepared a Bar to Reenlistment Certificate on the applicant.  The reason cited for the action was the applicant's writing of worthless checks, unpaid bills, arrest by the Provost Marshal for writing bad checks, and a traffic accident.  On 4 April 1991, the appropriate authority approved the bar to reenlistment.  The applicant acknowledged receipt of this action and elected neither to appeal the action nor to submit a statement in his own behalf.

5.  In April 1991, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty at the prescribed time on or about 6 April 1991.  His punishment for this offense was a reduction to private first class/pay grade E-3, forfeiture of $216.00 (suspended to be automatically remitted if not vacated before 23 July 1991), and 14 days of extra duty and restriction.

6.  A DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) on file in his official military personnel file shows the applicant was convicted of writing worthless checks in a civil court on 15 May 1991 and was sentenced to 3 days in jail, 6 months of probation, and a fine of $288.90.

7.  On 10 July 1991, a general court-martial (GCM) found the applicant guilty pursuant to his pleas of nine specifications of violating Article 123a of the UCMJ by making and uttering worthless checks with the intent to defraud between 21 and 30 March 1991.  The resultant approved sentence was 18 months of confinement (that portion of confinement in excess of 12 months suspended for 12 months at which time, unless the suspension was sooner vacated, the suspended part of the sentence would be remitted), forfeiture of all pay and allowances, reduction to the grade of private/pay grade E-1, and a DD.


8.  On 12 March 1992, the United States Army Court of Military Review set aside the finding of guilty of Specification 6 and dismissed Specification 6 of the charge.  The court reassessed the sentence and affirmed the sentence as approved by the convening authority.

9.  On 1 February 1993, United States Disciplinary Barracks, United States Army Combined Arms Center and Fort Leavenworth, Kansas, GCM Order Number 107 directed that Article 71(c) having been complied with and the sentence having been affirmed, the DD portion of the applicant's sentence be duly executed.

10.  On 9 April 1993, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his discharge shows he was separated with a DD under the provisions of paragraph 3-11, Army Regulation 635-200 (Personnel Separations), as a result of court-martial.  It also shows that at the time of his separation he had completed a total of 4 years, 2 months, and 13 days of creditable active military service and had accrued 290 days of time lost due to confinement.

11.  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 DD or BCD.  Paragraph 3-10 contains guidance on issuing a DD.  It states, in pertinent part, that a Soldier will be given a DD pursuant only to an approved sentence of a GCM.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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.

13.  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 request that his DD be upgraded to a GD so that he may receive benefits from the VA was carefully considered.  However, this factor is not sufficiently mitigating to warrant an upgrade of his discharge.

2.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable laws and regulation and his rights were protected throughout the court-martial process.

3.  By law, any redress by this Board of the finality of a Court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

4.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that his service was not sufficiently meritorious to support clemency given his disciplinary history and the seriousness of the offenses for which he was convicted.

5.  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

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)                                         AR20090005659



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ABCMR Record of Proceedings (cont)                                         AR20090005659



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