IN THE CASE OF:	  

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090013262 


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 either an honorable discharge (HD) or general under honorable conditions discharge (GD).

2.  The applicant states, in effect, that playing with a weapon was immature on his part at the time.  However, he has grown since then and has realized that you should never play with a weapon in the presence of others because you could seriously harm someone.  He states that he feels the punishment he received fit the crime at the time and that he has served the time.  He further states that his time served in the military means more to him than a BCD status, which is why he would like to have his BCD upgraded to either an HD or a GD.

3.  The applicant provides no documentation in support of his application.

ONSIDERATION 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 and entered active duty on 5 October 1995.  He was trained in and awarded military occupational specialty 19K (Armor Crewman).  His record documents no acts of valor or significant achievement.

3.  On 3 November 1997, a general court-martial (GCM) found the applicant guilty of violating Article 92 and Article 128 by the following:  Article 92, for violating a lawful general regulation by wrongfully possessing an unregistered privately-owned weapon on or about 2 August 1997, and Article 128, for committing an assault upon a person by drawing and preparing to fire a dangerous weapon while in plain view on or about 2 August 1997, to wit:  a loaded firearm.  The resultant sentence was reduction to the grade of private/PV1, total forfeiture of pay, confinement for 4 months, and a BCD.

4.  On 30 December 1997, the convening authority approved the sentence.  The convening authority terminated the 13 November 1997 deferment of total forfeiture and pursuant to Article 58B(b), UCMJ, the portion of the sentence of total forfeiture of pay was waived for 3 months effective immediately and payable directly to the applicant's wife.

5.  On 4 March 1998, the 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 12 June 1998, GCM Order Number 79, issued by Headquarters, U.S. Army Artillery Center and Fort Sill, Fort Sill, Oklahoma, Article 71(c) of the UCMJ having been complied with and the sentence having been affirmed, ordered the execution of the BCD.

7.  On 1 July 1998, 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 2 years, 5 months, 26 days of creditable active military service.

8.  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 HD 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Paragraph 3-7b provides that a 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

9.  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 or a GD 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 were therefore 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)                                         AR20090013262



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ABCMR Record of Proceedings (cont)                                         AR20090013262



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