BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090012575 


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, upgrade of his bad conduct discharge to a general, under honorable conditions or an honorable discharge.

2.  The applicant states his discharge was improper and unfair because it was based on one isolated incident in 48 months of service.  He states that he completed his first term of service with numerous medals awarded to him and he believes he served to the best of his ability.

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 29 September 1987.  He was awarded military occupational specialty (MOS) 19K (M1 armor crewman).  He reenlisted on 5 July 1991 for 2 years.  The highest rank/grade he held during his tenure of service was specialist (SPC)/E-4.  The applicant's records document no acts of valor or significant achievement.

3.  Records show that the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 26 November 1991 for willfully and unlawfully altering a public record, an individual sick slip, on or about 13 November 1991.  His punishment consisted of reduction to the rank/grade of private (PV1)/E-1.

4.  Records show the applicant was convicted by a special court-martial for commission of the following three offenses during the period 23 September 1991 to 21 January 1992: making a false official statement, breaking restriction, and larceny of six compact discs and a videotape.  The court-martial was authorized to adjudge a bad conduct discharge.

5.  On 24 April 1992, the applicant was sentenced to confinement for 30 days and a bad conduct discharge.  On 24 September 1992, the sentence was approved and, except for the part of the sentence extending to a bad conduct discharge, ordered to be executed.

6.  On 1 June 1994, the sentence having been affirmed pursuant to Article 71(c), UCMJ, the bad conduct discharge was ordered executed.

7.  On 7 December 1998, the applicant was discharged accordingly under provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial.  The DD Form 214 the applicant was issued shows he completed 11 years, 1 month, and 15 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 10 USC 972: 19920424-19920517."

8.  On 22 September 2000, the Army Discharge Review Board denied the applicant's request to upgrade his bad conduct discharge.

9.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted Soldiers.  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 3-7a, 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.

11.  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.

12.  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 discharge was improper and unfair because it was based on an isolated incident was carefully considered.  However, he accepted NJP for willfully and unlawfully altering a public record and he was convicted by a special court-martial for making a false official statement, breaking restriction, and larceny of six compact discs and a videotape.

2.  The applicant received a bad conduct discharge pursuant to an approved sentence of a special court-martial.  Conviction and discharge were affected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The appellate review was completed and the affirmed sentence was ordered executed.





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.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to an honorable or to a general, under honorable conditions discharge.

6.  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.

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)                                         AR20090012575



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ABCMR Record of Proceedings (cont)                                         AR20090012575



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