IN THE CASE OF:	  

		BOARD DATE:	    6 May 2010

		DOCKET NUMBER:  AR20090019143 


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 upgrade of his bad conduct discharge to a general under honorable conditions discharge.

2.  The applicant states he believes the record to be in error due to the fact that he has experienced difficulties since the incident in question.  He adds he has continued to try to improve his character and do his best for both himself and his children.  He concludes by stating he feels he is being labeled a bad person based on one very short period of his life.

3.  The applicant provides a copy of a character reference letter.

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 enlisted in the Regular Army on 16 April 1986 for a period of
3 years.  Upon completion of training he was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  He was assigned to Fort Campbell, KY on 13 August 1986.

3.  The applicant was arraigned at a special court-martial that convened in December 1987.

   a.  He pled guilty and was found guilty of the charges and specifications of on or about 28 August 1987:

   (1)  damaging the private property of another Soldier, of a value less than
$100; and
   
   (2)  larceny of car speakers, the property of another Soldier, of a value of
$100 or less.

   b.  On 4 December 1987, he was sentenced to confinement for two months, forfeiture of $400 pay per month for two months, reduction to the grade of E-1, and a bad conduct discharge.

   c.  On 7 January 1988, by Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, Special Court-Martial Order Number 1, the convening authority approved the sentence and, except for the part of the sentence extending to a bad conduct discharge, ordered the sentence executed.

4.  The applicant's records do not contain a copy of the U.S. Army Court of Military Review order affirming the findings and the sentence.

5.  Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, Special Court-Martial Order Number 39, dated 15 June 1988, shows the applicant's sentence was affirmed.  The provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.  The portion of the sentence pertaining to confinement had been served.

6.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was discharged on 11 December 1990 with a bad conduct discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, by reason of "As a Result of Court-Martial."  At the time he had completed 4 years, 6 months, and 13 days of net active service.

	a.  He was in an excess leave status from 25 January 1988 to 11 December 1990.

	b.  He was retained in service for 605 days for the convenience of the Government.

7.  The support letter from Ms. T----- B------, dated 16 October 2009, states she has been acquainted with the applicant as his landlord since 25 March 2009.  He is cordial, respectful, well-mannered, helpful, and very responsible.  He is a good, responsible person whom one can turn to in a time of need.  He always exhibits a spirit of volunteerism.  She is pleased to have met the applicant and to do business with him.

8.  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.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7b states 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.

   b.  Paragraph 3-10 states a Soldier will be given a bad conduct discharge
[DD Form 259A] pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his bad conduct discharge should be upgraded because he has experienced difficulties since the incident in question despite his efforts to improve himself and do his best for both himself and his family.

2.  The applicant's post-service conduct and commitment to his family since his discharge was considered; however, it is not sufficiently mitigating to warrant relief.

3.  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 applicant's rights were protected throughout the court-martial process.

4.  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 and 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.

5.  After a thorough and comprehensive review of the applicant's military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency is not appropriate.

6.  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)                                         AR20090019143



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ABCMR Record of Proceedings (cont)                                         AR20090019143



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