BOARD DATE:	  1 December 2009

		DOCKET NUMBER:  AR20090008406 


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 (BCD) be upgraded.

2.  The applicant states that:

	a.  he served in the U.S. Army honorably, until a unforeseen episode occurred at Fort Stewart, Georgia; 

	b.  he served time in the stockade and paid his dues; 

	c.  he has resolved his addiction issues that were the cause of his actions; and 

	d.  since being discharged his life has changed for the better, he is a productive citizen and has learned from his past mistakes.

3.  The applicant provides no additional documentation in support of this case.

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 enlisted in the Regular Army on 29 August 1990.  He successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 75B (Personnel Administrative Specialist).  He was promoted to the rank and grade of Sergeant (SGT)/E-5 on   1 May 1994.

3.  On or about 26 August 1994, the applicant was convicted, pursuant to his pleas, by a general court-martial of:

	a.  one specification of wrongfully using cocaine, 

	b.  one specification of wrongfully using marijuana,

	c.  one specification of stealing three personal checks,

	d.  three specifications of stealing lawful currency, the property of the Army and Air Force Exchange, and 

	e.  three specifications of writing bad checks.

His sentence consisted of a reduction to the grade of private/pay grade E-1, a forfeiture of $400.00 per month for seven months, confinement for seven months, and a BCD.  The convening authority approved the sentence.

4.  On 20 December 1994, the U.S. Army Court of Criminal Appeals (USACCA) affirmed the findings and the sentence.

5.  Headquarters, U.S. Army Garrison and Fort Dix General Court-Martial Order Number 45, dated 21 June 1995, directed that the bad conduct discharge be executed.

6.  On 17 July 1995, the applicant was discharged from the Army with a bad conduct discharge under the provisions of chapter 3 of Army Regulation 
635-200 (Personnel Separations), by reason of court-martial.  He completed 
4 years, 4 months, and 28 days of creditable active service with 187 days of time lost (confinement).

7.  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.  

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.  In accordance with Title 10 of the U. S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction by a court-martial convened under the UCMJ.  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 evidence of record confirms that the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  By law, the ABCMR may not disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

3.  The applicant's entire record of service was considered in this case.  However, given the seriousness of the offenses for which he was convicted and his rank at the time, it is determined that his service and post service are not sufficiently meritorious or mitigating to warrant the relief requested.




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)                                         AR20090008406





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ABCMR Record of Proceedings (cont)                                         AR20090008406



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