IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090005975 


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 upgrade of his bad conduct discharge to a general, under honorable conditions discharge. 

2.  The applicant states that his discharge should be upgraded based on his service in Desert Storm and Honduras.  He states he served his country for a total of 12 years. 

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.  On 18 October 1984, the applicant enlisted in the U.S. Army Reserve (USAR).  He served in the Ready Reserve until his enlistment in the Regular Army (RA).
3.  On 30 April 1991, the applicant enlisted in the RA.  He held military occupational specialty (MOS) 63J (Quartermaster and Chemical Equipment Repairman).

4.  On 10 May 1991, the applicant was assigned for duty with the 11th Armored Cavalry Regiment in the Federal Republic of Germany.

5.  On 1 April 1993, the applicant was advanced to the rank/grade of specialist (SPC)/E-4.

6.  On 24 January 1995, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for the following:

   a.  Charge I - for violation of Article 85 (one specification) for desertion from his unit until apprehended, from on or about 17 October 1994 to on or about     20 January 1995.
   
   b.  Charge II - for violation of Article 86 (two specifications) for unauthorized absence from his unit from on or about 1 to 3 October 1994 and for failure to be at his appointed place of duty on or about 19 September 1994.
   
   c.  Charge III - for violation of Article 90 (one specification) for disobeying a superior commissioned officer on or about 1 October 1994.
   
   d.  Charge IV - for violation of Article 92 (one specification) for violation of a lawful general regulation.
   
   e.  Charge V - for violation of Article 111 (two specifications) for drunk driving on or about 17 September 1994 and for drunk driving on or about 20 January 1995.
   
   f.  Charge VI - for violation of Article 128 (one specification) for assault upon another Soldier.
   
   g.  Charge VII - for violation of Article 134 (two specifications) for breaking restriction on or about 1 October 1994, and for drunk and disorderly conduct of a nature to bring discredit upon the Armed Forces on or about 20 January 1995.

7.  On 14 June 1995, before a Military Judge at a General Court-Martial, the applicant pled not guilty to all charges and specifications.  
   

8.  On 14 June 1995, after hearing all of the evidence, the Military Judge found the applicant not guilty of Charge I and its specification, but guilty of a violation of Article 86; guilty of Charge II and specification two, but not guilty of specification one; not guilty of Charges III and IV; guilty of Charge V and specification two, but not guilty of specification one; guilty of Charge VI and its specification; and guilty of Charge VII and its specifications.  The Military Judge sentenced him to reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 11 months, and a bad conduct discharge.  The Military Judge credited the applicant with 143 days toward his sentence to confinement.

9.  On 30 August 1995, the Staff Judge Advocate (SJA), in a written review for the convening authority, summarized the charges and specifications, findings and sentence, and personal data of the applicant.  The SJA also stated that the applicant had served 142 days of pretrial confinement and 1 day of restriction tantamount to confinement, that there was no pretrial agreement, and that the defense had not submitted any matters of extenuation and mitigation.  The SJA advised the convening authority to consider any defense submissions before taking action.  The SJA recommended that the convening authority approve the sentence and order it executed.

10.  On an unknown date, the defense submitted a response to the SJA's recommendation, wherein defense requested that the sentence to confinement be reduced to 9 months.  Defense counsel explained that the applicant had been in continuous confinement since his apprehension in January 1995.  

11.  On 29 October 1995, the SJA, in an addendum to his original recommendation, adhered to that recommendation.

12.  On 30 October 1995, the convening authority approved the sentence as provided for reduction to the grade of E-1, forfeiture of all pay and allowances, confinement for 11 months and a bad conduct discharge.  The convening authority ordered the sentence executed, except for that part extending to a bad conduct discharge.  The applicant was credited with 143 days confinement against the sentence to confinement. 

13.  On 16 April 1996, the United States Army Court of Criminal Appeals reviewed the entire record, including consideration of the applicant's personal request to not approve the bad conduct discharge based on his approximately 
11 years of service.  It held that the findings of guilty and the sentence, as approved by the convening authority, was correct in law and fact.  Accordingly, it affirmed the finding of guilty and the sentence as approved.

14.  General Court-Martial Order Number 108, United States Army Armor Center, Fort Knox, KY, dated 22 May 1997, provided that the sentence to reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 11 months, and a bad conduct discharge, adjudged on 14 June 1995, had been affirmed.  Article 71(c), UCMJ, having been complied with, the bad conduct discharge was to be executed.  That portion of the sentence pertaining to confinement had been served.  The accused was credited with 143 days confinement against the sentence to confinement.

15.  The applicant's DD Form 214 shows that he was discharged on 24 July 1997 under the provisions of Army Regulation 635-200, chapter 3, section IV and he received a bad conduct characterization of service.  

16.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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.

17.  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 his bad conduct discharge should be upgraded to a general, under honorable conditions discharge based on his overall length of service.

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 final discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  The applicant's record of good service is greatly diminished by his several incidents of misconduct.  Accordingly, he has not provided sufficient evidence or convincing argument to warrant an upgrade of his discharge.
4.  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 the aforementioned requirement.

5.  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.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20090005975



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ABCMR Record of Proceedings (cont)                                         AR20090005975



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