BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090009501 


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.

2.  The applicant states he was injured on duty resulting in permanent disability prior to charges being brought against him and before the court-martial.  He states that he could have been treated for his illness and discharged for disability instead of the discharge he received.

3.  The applicant provides no additional documentary evidence in support of this 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 Regular Army (RA) on 3 February 1988.  He was awarded military occupational specialty (MOS) 11B (infantryman).  He was advanced to private (PV2)/E-2, which is the highest rank he held during his tenure of service.  The applicant's records document no acts of valor or significant achievement during his military service.

3.  On 3 February 1989, the applicant was convicted by a general court-martial, pursuant to his plea, for larceny.  His sentence was adjudged on the same date.

4.  The applicant was sentenced to a reduction to the rank/grade of private (PV1)/E-1, forfeiture of all pay and allowances, confinement for four months, and discharge from the Army with a bad conduct discharge.  The sentence was approved and, except for the part of the sentence extending to a bad conduct discharge, ordered to be executed.

5.  The applicant, through counsel, appealed, contending that the sentence was excessive.  The United States Army Court of Military Review (USACMR) found the sentence appropriate under the circumstances presented in the record of trial.  On 12 October 1989, the USACMR affirmed the findings of guilty and the sentence.

6.  On 25 April 1990, the sentence having been affirmed, the bad conduct discharge was ordered executed.

7.  On 20 June 1990, the applicant was discharged under provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of a general court-martial.  The DD Form 214 he was issued shows he completed 2 years, 1 month, and 10 days of active military service.  Item 24 (Character of Service) of this form shows the entry "Bad Conduct" and item 29 (Dates of Time Lost During This Period) shows the entry "(Under USC 972) --890203-890511."

8.  Army Regulation 635-200, governs the policies and procedures 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.

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 discharge with characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

10.  Army Regulation 635-200, paragraph 3-11, provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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 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.

12.  Chapter 3 (Retention Medical Fitness Standards) of Army Regulation 
40-501 (Standards of Medical Fitness) provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing. 

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB).  Those members who do not meet medical retention standards based on the criteria in Army Regulation 40-501 will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

14.  Army Regulation 635-40 provides, in pertinent part, that a Soldier charged with an offense under the Uniform Code of Military Justice (UCMJ) or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or a punitive discharge may not be referred for, or continue disability processing unless the investigation ends without charges, the charges are dismissed, or the charge is referred for trial to a court-martial that cannot adjudge such a sentence.





DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was injured on duty resulting in permanent disability prior to charges being brought against him and that he should have been discharged for disability was considered in these proceedings.  However, there is no available evidence nor did he provide any evidence in support of this contention.

2.  Even if the applicant had been referred to an MEB for an injury, once he was charged with offenses which could result in a punitive discharge he would have been unable to continue any disability processing until final disposition of the charges.  Once he was sentenced to a punitive discharge he no longer would have been eligible to continue disability processing.

3.  The applicant was administered a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered executed.  Further, the applicant's discharge accurately reflects his overall record of service.  All requirements of law and regulation were met and the rights of the applicant were fully protected.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.

4.  There is no record or documentary evidence of acts of valor or service that would warrant special recognition.  Given the seriousness of the offenses for which the applicant was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant's request to upgrade his discharge.

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 foregoing, there is no basis for granting the applicant's requested relief.





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)                                         AR20090009501



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ABCMR Record of Proceedings (cont)                                         AR20090009501



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