IN THE CASE OF:	  

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090016227 


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, under honorable conditions discharge (GD).

2.  The applicant states, in effect, the crime he was accused of was untrue and unjustified.

3.  In his application, the applicant indicates he provides documents showing a stay at a psychiatric facility and that he suffered from asthma; however, no documents related to these matters were included with 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 he enlisted in the Regular Army and entered active duty on 14 August 1986.  His record further shows he completed One Stop Unit Training at Fort Sill, Oklahoma, and was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  It further shows he was promoted to specialist four/E-4 (SP4/E-4) on 1 June 1988, and this is the highest rank he attained while serving on active duty.  In addition, it confirms he was reduced to private first class/E-3 (PFC/E-3) on 22 August 1989 and to private/E-1 (PV1/E-1) on 19 January 1990.

3.  The record further shows the applicant earned the Army Achievement Medal, Army Service Ribbon, Parachutist Badge, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  In addition, it shows he accrued 122 days of time lost from 19 January to 22 May 1990, due to confinement.

4.  On 19 January 1990, a special court-martial (SPCM) found the applicant guilty of two specifications of violating Article 121 (Larceny of government property) and one specification of violating Article 134 (Making a false official statement) of the Uniform Code of Military Justice (UCMJ).  The resulting sentence was a reduction to PV1/E-1, five months confinement, forfeiture of $200.00 a month for 5 months, and a BCD. 

5.  The SPCM convening authority approved the sentence and directed that all but the BCD portion be duly executed in Headquarters, 2nd Infantry Division, SPCM Order Number 12, dated 21 March 1990.

6.  On 31 July 1990, the United States Army Court of Military Review, after a review of the entire record in the applicant’s case, held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact.  Accordingly, it affirmed the guilty findings and the sentence in the applicant’s case.  

7.  On 13 November 1990, SPCM Order Number 187, issued by Headquarters, United States Army Armor Center and Fort Knox, For Knox, Kentucky, directed, Article 71c of the UCMJ having been complied with, that the BCD portion of the sentence be duly executed.  On 14 December 1990, the applicant was discharged accordingly.


8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his discharge shows he was discharged under the provisions of chapter 3, Army Regulation 635-200, by reason of
court-martial and received a BCD.  It also shows at the time of his discharge he completed 3 years, 11 months, and 28 days of creditable active military service and accrued 122 days of time lost due to confinement. 

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

10.  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 BCD.  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 BCD portion of the sentence is ordered duly executed.  

11.  Army Regulation 635-200, 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 characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

12.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  Under the provisions of 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 GD because the crime he was accused of was untrue or unjust was carefully considered. However, the evidence is insufficient to support this claim. 

2.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction 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.  The evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.  Given the gravity of the offenses that resulted in his SPCM conviction, the evidence is not sufficient to support clemency.  Further, the applicant did not provide evidence showing his mental or physical health impacted his actions or mitigated the misconduct that led to his court-martial conviction and BCD. 

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)                                         AR20090016227



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ABCMR Record of Proceedings (cont)                                         AR20090016227



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