IN THE CASE OF:	

		BOARD DATE:	  02 March 2010

		DOCKET NUMBER:  AR20090016469 


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 an upgrade of his bad conduct discharge (BCD) to a general discharge under honorable conditions.

2.  The applicant states, in effect, he was depressed while he was in the military and placed under suicide watch numerous times.  He also states that he saw a psychologist before he got into the trouble that resulted in his discharge.  Therefore, he believes he was seriously wronged.

3.  The applicant provides no additional documents 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 (RA) and he entered active duty on 13 August 1998.    

3.  The applicant’s record contains a copy of Headquarters, U.S. Army Aviation Center and Fort Rucker, General Court-Martial (GCM) Order Number 4, dated 
5 September 2001, which documents the following charges, pleas, and findings:

	a.  Charge I, Article 123, Uniform Code of Military Justice (UCMJ):  
	
		Specification I:  Falsely make in their entirety certain checks on divers occasions from on or about 15 July 2000 to on or about 28 July 2000.  Plea:  Not Guilty.  Finding:  Not Guilty.  
		
	b.  Charge II, Article 121, UCMJ, with four specifications:  

		(1)  Specification I:  From on or about 15 July 2000 to on or about 17 July 2000, steal non-military property of a value of more than $100.00, the property of the Army and Air Force Exchange Services (AAFES).  Plea:  Not Guilty.  Finding:  Not Guilty.

		(2) Specification II:  From on or about 18 February 2000 to on or about 
27 March 2000, steal non-military property of a value of less than $100.00, the property of AAFES.  Plea:  Not Guilty.  Finding:  Not Guilty.

(3)  Specification III:  On or about 18 February 2000, steal non-military 
property of a value of more than $100.00, the property of AAFES.  Plea:  Guilty except for the words:  "more than $100.00" and substituting therefore the words "less than $100.00."  To the excepted words:  Not Guilty, to the substituted words: Guilty.  Finding:  Guilty except for the words "more than $100.00" and substituting therefore the words "less than $100.00."

		(4)  Specification IV:  From on or about 16 February 2000 to on or about 
7 May 2000, steal non-military property of a value of less than $100.00, the property of AAFES.  Plea:  Guilty.  Finding:  Guilty.

	c.  Charge III, Article 130, UCMJ:

		Specification:  On or about 1 March 2000, unlawfully enter a barracks room, the property of the U.S. Government, used as a dwelling by Specialist 
A----e, with the intent to commit a criminal offense, to wit larceny.  Plea:  Not Guilty.  Finding:  Not Guilty.


	d.  Additional Charge I, Article 123a, Plea:  Guilty.  Finding: Guilty.  

		(1)  Specification I:  From on or about 3 September 2000 to on or about 
26 November 2000, wrongfully draft checks with insufficient funds to Pizza Hut, with intent to defraud and for the procurement of a thing of value.  Plea:  Guilty.  Finding:  Guilty.

		(2) Specification II:  From on or about 22 October 2000 to on or about 
17 November 2000, wrongfully draft checks with insufficient funds to Domino's Pizza, with intent to defraud and for the procurement of a thing of value.  Plea:  Guilty.  Finding:  Guilty.
      
(3)  Specification III:  From on or about 3 November 2000 to on or about 
4 November 2000, wrongfully draft checks with insufficient funds to Piggly Wiggly, with intent to defraud and for the procurement of a thing of value.  Plea:  Guilty.  Finding:  Guilty.
      
(4)  Specification IV:  From on or about 27 November 2000 to on or about
3 December 2000, wrongfully draft checks with insufficient funds to Grocery Outlet, with intent to defraud and for the procurement of a thing of value.  Plea:  Guilty.  Finding:  Guilty.

(5)  Specification V:  From on or about 15 November 2000 to on or about
22 November 2000, wrongfully draft checks with insufficient funds to Mr. Henry's Store, with intent to defraud and for the procurement of a thing of value.  Plea:  Guilty.  Finding:  Guilty.

	e.  Additional Charge II, Article 134, Plea:  Not Guilty. Finding: Guilty.  

Specification:  On or about 23 March 2000 communicate a threat to harm
property of the U.S. Government with an explosive device.   Plea:  To the specification, Not Guilty, but to Disorderly, Guilty.  Plea:  To the specification, Not Guilty, but to the charge and Disorderly Conduct, Guilty.

4.  On 22 May 2001, sentence was adjudged.  The applicant was sentenced to be reduced to private (PV1)/E-1, forfeit all pay and allowances, confined for 
7 months, and to be discharged with a BCD.  The sentence was approved and except for the part of the sentence extending to the BCD was executed.  

5.  On 22 January 2003 the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and found the sentence correct in law and fact and affirmed the sentence.

6.  On 6 June 2003, the appropriate authority ordered the sentence duly executed.  

7.  The applicant's DD Form 214 shows he was discharged on 21 August 2003 under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), by reason of court-martial, with a BCD.

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states 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.

9.  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.

10.  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.

11.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant's record nor did the applicant submit any evidence, that shows he suffered from depression, was placed under suicide watch, or that he was evaluated by a psychologist while he was in the military.  In addition, theft and fraud are not natural reactions to depression.
2.  The evidence of record does show the applicant was convicted by a GCM and he received a BCD.  Trial by a GCM was warranted by the serious nature of the offenses for which the applicant was charged and convicted.  The applicant’s service was not sufficiently meritorious to warrant granting clemency. 

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 record of service, the seriousness of the offenses for which he was convicted 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.

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)                                         AR20090016469



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1