IN THE CASE OF:	

		BOARD DATE:	10 December 2009  

		DOCKET NUMBER:  AR20090010217 


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 an honorable discharge (HD).

2.  The applicant states, in effect, that he is requesting an upgrade of his discharge.  Although he was convicted by a court-martial he was hoping that his sentence/punishment would have been less severe.  He wonders if he had not requested a discharge if he would have been allowed to remain in the service and what his sentence may have been.

3.  The applicant provides in support of his application two packets with the 
7 exhibits listed on the index page.  

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 (RA) and entered active duty on 17 October 1990.  He was trained in and awarded military occupational specialty (MOS) 92A (Automated Logistical Specialist).  His record documents no acts of valor or significant achievement.

3.  On 14 February 1995, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for wrongfully appropriating a Reveal brand 8 MB computer memory upgrade kit of a value of about $479.00, and for stealing approximately $479.00 in U.S. currency, the property of the Army and Air Force Exchange on or about 8 December 1994.  
Charges were also filed against him for stealing a Reveal 8 MB computer memory upgrade kit of a value of about $479.00, property of the Army And Air Force Exchange on or about 19 December 1994, and for stealing two Reveal 
4 MB memory upgrade kits of a value of about $189.00 each on or about 
28 December 1994.  Additionally, he was charged with intent to deceive, making an official statement to a military policeman "I did not steal anything today, a friend gave me the chips about a week ago" which was totally false and then known by the applicant to be false on 28 December 1994.

4.  On 27 March 1995, a General Court-Martial (GCM) found the applicant guilty, of violating the above offenses and he was sentenced to a reduction to private (PV1)/E-1, a forfeiture of all pay and allowances, 45 days in confinement, and a BCD.  The convening authority approved the sentence.

5.  On 28 June 1995, the United States (U.S.) Army Court of Criminal Appeals, after consideration of the entire record, including consideration of the issues personally specified by the appellant, held that the findings of guilty and sentence approved by the convening authority in the applicant's case were correct in law and fact.  Accordingly, it affirmed the guilty findings and the sentence.  

6.  On 14 November 1995, the U.S Army Court of Appeals for the Armed Forces denied the petition to grant review of the decision of the U.S. Army Court of Criminal Appeals.


7.  On 25 March 1996, GCM Order Number 25, issued by Headquarters, U.S. Army Armor Center and Fort, Knox, Fort Knox, Kentucky, directed, that, Article 71(c) of the UCMJ having been complied with and the sentence having been affirmed, ordered the execution of the BCD.  

8.  On 14 May 1996, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued upon separation shows he was separated under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), as a result of a court-martial and he was issued a BCD.  This document also confirms he had completed a total of 
5 years, 5 months, 21 days of creditable active military service.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will 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 affirmed sentence ordered duly executed.  Paragraph 3-7a of Army Regulation 635-200 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.  Paragraph 3-7b provides that a general discharge (GD) 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 (HD).  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 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.  The applicant's contention that his BCD should be upgraded to an HD was carefully considered.  However, there is insufficient evidence to support granting the requested relief.

2.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial conviction and/or his subsequent discharge.  His record reveals no acts of valor or significant achievement.  His overall record of service is not sufficiently meritorious to support an upgrade of his BCD given the gravity of the offenses that resulted in his court-martial conviction.  Therefore, there is an insufficient evidentiary basis to support clemency in this case.  

3.  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.  

4.  The available evidence does not indicate that the applicant requested a discharge and he did not have the option of remaining in an active duty status after his court-martial conviction and sentence to a BCD.

5.  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.

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)                                         AR20090010217



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ABCMR Record of Proceedings (cont)                                         AR20090010217



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