IN THE CASE OF:	  

		BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090008245 


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 (BCD) to a general, under honorable conditions or an honorable discharge.

2.  The applicant states that he served his country proudly in Kuwait.  He has suffered from post traumatic stress disorder for the last 12 years.  He was not mentally stable and that was the reason for all of his actions which caused him to commit those crimes in 1997.  He has not gotten into any conflicts with the law since then and he wants to be a productive citizen in the United States of America.

3.  The applicant provides no additional 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 military records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 25 January 1995.  He was discharged from the USAR DEP on 8 August 1995 and he enlisted in the Regular Army (RA) on 9 August 1995 for four years in pay grade E-1.  He completed basic combat and advanced training and he was awarded military occupational specialty (MOS) 19K (Armor Crewman).  He was advanced to pay grade E-3 on 1 June 1996.  He served in Saudi Arabia from 1 September 1996 to 6 January 1997.

3.  The applicant’s DA Form 201 (Personnel Enlisted Qualification Record) shows he was reduced to pay grade E-2 on 6 January 1997 and to pay grade 
E-1 on 11 April 1997.  The reason for the reduction was not shown.  The 
DA Form 2-1 also shows he was placed in pre-trial confinement from 
10 December 1997 to 9 March 1998.

4.  In March 1998, the applicant was convicted pursuant to his pleas by a general court-martial of two specifications of being absent without leave (AWOL) from 6 to 10 October 1997 and from 22 July to 29 August 1997; one specification of wrongfully using marijuana between 1 September and 6 October 1997; one specification of stealing personal property of another person, of a value of about $830.00, on or about 3 October 1997; and one specification of unlawfully striking another person on the face with his fists on 13 January 1998.  The applicant was sentenced to forfeiture of all pay and allowances, confinement for 10 months, and to be discharged from the Army with a BCD.  The sentence was adjudged on 10 March 1998.

5.  On 15 June 1998, the convening authority approved only so much of the sentenced as provided for forfeiture of all pay and allowances, confinement for 5 months, and a BCD and ordered with the exception of the BCD, it be duly executed.  It was also ordered that the applicant be credited with 90 days confinement against the sentence to confinement.

6.  General Court-Martial Order Number 85, dated 5 August 1999, published by the U.S. Army Field Artillery Center, Fort Sill, OK, ordered the applicant’s BCD duly executed and found that the part of the sentence extending to confinement had been served.

7.  The applicant was discharged on 8 June 2001, in pay grade E-1, under the provisions of Army Regulation 635-200 (Personnel Separations – Advice Duty Enlisted Administrative Separations), chapter 3, by reason of court-martial.  He was credited with 5 years, 4 months, and 8 days total active service.  He was 
also credited with excess leave from 22 May 1998 to 8 June 2001 and lost time from 22 July to 29 August 1997, 6 to 10 October 1997, and 10 December 1997 to 16 April 1997 due to AWOL.

8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation provided that a Soldier would 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 sentence affirmed before it could be duly executed.

9.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

10.  Army Regulation 635-200, paragraph 3-7b, defines a general discharge as 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 separation specifically allows such characterization.

11.  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 Army Board for Correction of Military Records is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

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 characterized the misconduct for which the applicant was convicted.
3.  The evidence of record shows that the applicant was convicted by a general court-martial for two periods of AWOL, wrongfully using marijuana, stealing the property of another person, and striking another person with his fists.  He was discharged pursuant to the sentence of a general court-martial and was issued a bad conduct discharge.

4.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offenses.  There is no error or injustice in his record.  He has provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations, with due process.  The applicant has submitted no evidence other than his contentions that has suffered from PTSD for the last 12 years and this caused him to commit those crimes.  

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  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.

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)                                         AR20090008245



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ABCMR Record of Proceedings (cont)                                         AR20090008245



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