IN THE CASE OF:	  

		BOARD DATE:	         4 JUNE 2009

		DOCKET NUMBER:  AR20090001747 


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 discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was aware of his responsibilities while charge of quarters (CQ).  He had read the logbook several times and the logbook did not contain anything pertaining to him being responsible for another Soldier's keys.  He believes the blame was put on him because he was the CQ.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 that he enlisted in the Regular Army and entered active duty on 9 October 1985.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Infantryman), and the highest rank he attained while serving on active duty was sergeant (SGT)/E-5.  

3.  Special Court-Martial Order Number 13, Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, Kentucky, dated 27 March 1992, shows that on 10 February 1992, the applicant was convicted by a Special Court-Martial of larceny of U.S. Currency of a value of $80.00, and of unlawfully entering a barracks room on about 12 December 1991.  He was sentenced to reduction to private (E-1) and to be discharged with a BCD. 

4.  The sentence was approved on 27 March 1992.

5.  The applicant's DD Form 214 shows that he was discharged, on 6 May 1993, under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations), by reason of court-martial with a bad conduct discharge.

6.  On 15 July 1997, the Army Discharge Review Board denied the applicant’s request for upgrade of his discharge.

7.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. States Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 sentence affirmed before it can be duly executed.

9.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.
10.  Army Regulation 635-200, paragraph 3-7b, defines a general discharge as 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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his bad conduct discharge should be upgraded to an honorable discharge was carefully considered and found to lack merit.  The applicant was tried and convicted of unlawfully entering a barracks room and of larceny.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  In view of the circumstances in this case, the applicant has not established a basis for clemency.  He has not shown error, injustice, or inequity for the relief he now requests.  

3.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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.



      ____________XX____________
                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)                                         AR20090001747



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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