BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090018562 


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 (GD) under honorable conditions.

2.  The applicant states that:

* his job aspirations are hindered
* his family does not receive medical benefits
* at the time of his misconduct he was irresponsible and selfish 
* he has grown into a respectable father and husband due to the Army 
* he is requesting an upgrade for the benefit of his family 

3.  The applicant did not provide additional documentation. 

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 3 November 1994.  He was trained in and was awarded military occupational specialty (MOS) 19K (Armor Crewman) and pay grade E-2 is the highest rank he attained while serving on active duty.  

3.  The applicant's record shows he earned the National Defense Service Medal, the Army Service Ribbon, the Expert Marksmanship Qualification Badge with Grenade Bar, and the Marksman Marksmanship Qualification Badge with Pistol Bar during his active duty tenure.  His record documents no acts of valor or significant achievement. 

4.  On 21 August 1995, the applicant received nonjudicial punishment (NJP) for failure to go to his appointed place of duty at the time prescribed and for breaking restriction.  His imposed punishment was a reduction to pay grade E-1, a forfeiture of $199.00 pay (suspended for 5 months), 14 days of restriction, and 
14 days of extra duty. 

5.  On 6 February 1996, the applicant received NJP for being absent without leave (AWOL) from 4 to 25 January 1996.  His imposed punishment was a forfeiture of $435.00 pay for 2 months and 45 days of extra duty.

6.  On 20 August 1996, a general court-martial (GCM) found the applicant guilty of violating Articles 85, 92, 121, 128, and 134 of the Uniform Code of Military Justice (UCMJ) as follows:

* one specification of desertion 
* one specification of disobeying a lawful order 
* three specifications of larceny from other Soldiers
* three specifications of assault
* one specification of disorderly conduct 

7.  The resulting GCM sentence was confinement for 4 years and a BCD.  The GCM convening authority approved the sentence and credited the applicant with 
31 days served against his sentence to confinement.  The sentence was approved except for that part of the sentence extending to a BCD.  On 
29 September 1997, the applicant’s petition for review was denied. 

8.  On 10 November 1997, the applicant was discharged under the provisions of chapter 3, Section IV, Army Regulation 635-200 (Personnel Separations), by reason of court-martial with a BCD.  The DD Form 214 he was issued at the time shows he completed a total of 1 year, 4 months, and 10 days of creditable active military service.

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 BCD.  It stipulates 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 BCD should be upgraded to allow him to qualify for medical benefits and to obtain certain jobs has been carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief. 

2.  By law, any redress of the finality of a court-martial conviction under the UCMJ is prohibited.  The ABCMR 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 reveals no error or injustice related to the applicant's 
court-martial conviction and/or his subsequent discharge.  His record documents no acts of valor or significant achievement.  Therefore, given the gravity of his offenses his overall record of service is not sufficiently compelling to support clemency and/or an upgrade of his discharge. 

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)                                         AR20090018562



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ABCMR Record of Proceedings (cont)                                         AR20090018562



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