IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090009536 


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, in effect, that his bad conduct discharge be upgraded to a general discharge and that his narrative reason for separation be changed to a more favorable reason. 

2.  The applicant states that he has fulfilled the requirements of his punishment and that he has been a contributor to society since his discharge.  He is raising a family of six and has been running a family business with his wife for the past 
6 years.  He acknowledges he made a mistake.  He also states that he still served the Army well, and that he did his job to the best of his ability.  He would like to restore a little honor to his name.  

3.  The applicant did not provide any additional documentary evidence in support of his request. 

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 records show he enlisted in the Regular Army for a period of 4 years on 27 October 1994.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist).  He was assigned to the 307th Forward Support Battalion, 82nd Airborne Division, Fort Bragg, NC.

3.  On 12 July 1996, the applicant pled guilty at a general court-martial to one specification of conspiring with others to commit larceny between 13 December 1995 and 12 February 1996, one specification of larceny of $1,470.00 from Voyager Insurance Companies between on or about 17 December 1995 and 
26 January 1996, one specification of wrongfully appropriating property of a value of about $270.00 from another Soldier on or about 10 February 1996, and one specification of making a false claim against the United States of America on or about 21 December 1995.  The Court sentenced him to reduction to the grade of E-1, a total forfeiture of all pay and allowances, confinement for 8 months, and a bad conduct discharge.   The sentence was adjudged on 12 July 1996. 

4.  On 26 September 1996, the convening authority approved the sentence and except for that part of the sentence extending to the bad conduct discharge, ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

5.  On an unknown date in February 1998, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

6.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, General Court-Martial Order Number 48, dated 27 February 1996, shows after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

7.  The applicant was discharged from the Army on 15 May 1998.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged in accordance with section IV, chapter 3, of Army Regulation 635-200 (Personnel Separations), as a result of court-martial, with a bad conduct discharge.  This form further shows the applicant completed a total of 3 years and 22 days of creditable military service and had he had 177 days of lost time.  Item 26 (Separation Code) of this form shows the entry "JJD" and item 28 (Narrative Reason for Separation) of this form shows the entry "Court-Martial, Other."

8.  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.

9.  Army Regulation 635-200 governs 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.  .

10.  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.

11.  Army Regulation 635-200, paragraph 3-10 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.  

12.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the separation program designator (SPD) codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense and the Military Services to assist in the collection and analysis of separation data.  The "JJD" SPD code is the correct code for Soldiers separating under section IV, chapter 3 of Army Regulation 635-200 by reason of a court-martial-other.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded and the narrative reason for separation should be changed to a more favorable reason. 
2.  The applicant’s fulfillment of the requirements of his punishment and his post service personal and professional accomplishment were considered.  However, they are not sufficiently mitigating to grant the requested relief. 

3.  The applicant was convicted by a general court-martial, which was warranted by the gravity of the offenses charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

4.  The applicant was issued a bad conduct discharge pursuant to an approved sentence of a general court-martial.  Absent his offenses, there was no fundamental reason to convene a court-martial.  The underlying reason for his court-martial and ultimate conviction was his offenses.  The only valid narrative reason for separation permitted under the chapter 3, section IV of Army Regulation 635-200 is "court-martial."  Furthermore, the appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and the rights of the applicant were fully protected.  

5.  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.  He did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to an upgrade of his discharge or correction of the narrative reason for his separation. 

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)                                         AR20090009536



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ABCMR Record of Proceedings (cont)                                         AR20090009536



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