IN THE CASE OF:	

		BOARD DATE:	8 December 2009  

		DOCKET NUMBER:  AR20090009063 


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 to a general discharge.

2.  The applicant states, in effect, that one should not be punished by the issuance of a BCD due to failure to adapt to military life and quitting a job.  He also states that his prosecutor wanted to send a message by making him an example. 

3.  The applicant provides no additional documents 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 record shows he enlisted in the Regular Army and entered active duty on 19 June 1986.  

3.  On 20 December 1990, the applicant requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  However, on 3 January 1991, his request was denied.  The commanding general stated that the applicant's desertion charge and his lengthy absence from the command had serious adverse consequences regarding discipline which warranted trial by court-martial and not an administrative discharge.  

4.  General Court-Martial Order Number 12, dated 3 May 1991, shows the applicant was convicted by a general court-martial and found guilty of the following violations of Articles of the Uniform Code of Military Justice (UCMJ) as indicated:  Article 85, desertion and Article 108, destruction of government property (an Armed Forces Identification Card).  His approved sentence consisted of confinement for 3 years (excess of 10 months suspended for 
12 months), a forfeiture of all pay and allowances, reduction to the rank of private/E-1, and a BCD.  The sentence was adjudged on 21 February 1991.

5.  A copy of the U.S. Army Court of Military Review affirmation of the applicant's sentence is not contained in the available military personnel file.

6.  The applicant's DD Form 214 shows he was discharged on 9 June 1992 with a BCD.  The authority and reason are listed as chapter 3, Section IV, Army Regulation 635-200.  The applicant had completed 4 years, 1 month, and 24 days of total active service.  He also had two periods of lost time from
9 October 1989 to 10 December 1990 and 11 December 1990 to 5 August 1991.

7.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 3 establishes policy and procedures for separating members with a dishonorable or BCD.  It also provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial; and, the appellate review must be completed and the affirmed sentence must be ordered duly executed.

8.  Army Regulation 635-200, 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.

9.  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.

10.  Court-martial convictions stand as adjudged or as 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.  Although a copy of the document from the U.S. Army Court of Military Review affirming the findings and sentence of the applicant's general court-martial is not contained in his military record, the presumption of regularity must be applied.  

2.  The available evidence shows the applicant was convicted by a general court-martial of desertion and destruction of government property.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed by the court-martial.  After a thorough review of the applicant’s record and issues the Board found no basis for granting clemency in this case. 

3.  The applicant argues that the prosecutor attempted to make an example out of him without elaborating or providing evidence to support his allegations.  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.

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.




      _______ _   _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)                                         AR20090009063



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ABCMR Record of Proceedings (cont)                                         AR20090009063



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