IN THE CASE OF:	 

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090014096 


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 (BCD) be upgraded to a general discharge (GD) under honorable conditions.  

2.  The applicant states, in effect, his discharge was based on a single incident.  He claims he served his time and paid for his mistake and he would like to reenlist and defend his country.  He claims he was an outstanding Soldier prior to committing the larceny that led to his discharge.  

3.  The applicant provides no documentary evidence 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 16 January 1990.  He was trained in and awarded military occupational specialty (MOS) 19D (Cavalry Scout). 

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was advanced to private (PV2)/E-2 on 4 January 1991, and this is the highest rank he attained while serving on active duty.  His record shows he served in Kuwait from 10 June through 10 September 1991, and that he earned the following awards during his active duty tenure:  National Defense Service Medal, Southwest Asia Service Medal with bronze service star, Army Service Ribbon, and Sharpshooter Marksmanship Qualification Badge with Rifle and Hand Grenade Bars.  His record documents no acts of valor or significant achievement.

4.  On 5 March 1992, a General Court-Martial (GCM) found the applicant 
guilty of violating Articles 121, 134, 123, and 112a of the Uniform Code of Military Justice (UCMJ) as follows:  Article 121 (12 Specifications) of larceny; Article 134 (3 Specifications) of deliberately failing to maintain funds; Article 123
(10 Specifications) of forgery; and Article 112a the wrongful use of illegal drugs.  The resulting sentence imposed was a BCD, a forfeiture of all pay and allowances, confinement for 2 years, reduction to private (PV1)/E-1, and a fine of $1,500.00 payable by 5 June 1992, or to serve one extra year in confinement.  

5.  On 3 June 1992, in Headquarters, V Corps GCM Order Number 29, the GCM convening authority approved only so much of the sentence as provided for a BCD, a forfeiture of all pay and allowances, confinement for 2 years, a fine of $1,500.00, and reduction to PV1/E-1.  

6.  On 14 December 1992, the United States Army Court of Military Review on consideration of the entire record, including consideration of the issues personally specified by the appellant, held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, those findings of guilty and the sentence were affirmed.  

7.  On 30 March 1993, Headquarters, United States Disciplinary Barracks, Combined Arms Command and Fort Leavenworth, Fort Leavenworth, Kansas, GCM Order Number 219 affirmed the sentence pursuant to Article 66 of the UCMJ and directed Article 71(c) of the UCMJ having been complied with that the BCD portion of the applicant’s sentence be executed.  On 28 May 1993, the applicant was discharged accordingly.  


8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty)  issued to the applicant upon his discharge shows he completed a total of 1 year and 3 months of creditable active military service and he had accrued 498 days of time lost due to being in confinement.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates, in pertinent part, that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

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 Army Board for Correction of Military Records 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 contentions that his discharge should be upgraded because it was based on a single incident and that he has paid for his mistake was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.  

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ, 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.  

3.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge, and his record reveals no acts of valor or significant achievement.  Given the gravity of the offenses that resulted in his GCM conviction and BCD, his overall record of service alone is not sufficiently meritorious to support clemency in this case. 

4.  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)                                         AR20090014096



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ABCMR Record of Proceedings (cont)                                         AR20090014096


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