IN THE CASE OF:	

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090019480 


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

2.  The applicant states he was under the impression that he could file for an upgrade if he wanted to enlist in the Army.  He argues that he was only 17 years old at the time of enlistment.  He contends there are things in his Record of Trial that did not make sense and he still thinks his discharge was not right.

3.  The applicant provides no additional documentary evidence in support of this 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 17 April 2001.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On 18 October 2002, a general court-martial (GCM) found the applicant guilty of violating the following Articles of the Uniform Code of Military Justice (UCMJ):

* Article 112 by wrongfully using marijuana (two specifications)
* Article 81 by conspiring to commit larceny
* Article 121 by larceny of four vehicle tires and five car stereo systems, properties of other Soldiers
* Article 109 by willfully and wrongfully damaging privately owned vehicles (five specifications), properties of other Soldiers
* Article 134 by unlawfully entering the battalion motor pool
* Article 85 by being absent in desertion from on or about 29 May 2002 until on or about 30 July 2002
* Article 111 by driving a passenger car while drunk

4.  The resulting sentence from the military judge was reduction to the grade of private (PV1)/E-1, forfeiture of all pay and allowances, confinement for
16 months, and a BCD.

5.  Headquarters, 24th Infantry Division, Fort Riley, KS, GCM Order Number 1, dated 15 January 2003, shows the applicant's sentence was approved and, except for the part of the sentence extending to a BCD, was ordered executed.  The applicant was credited with 76 days of confinement against the sentence of confinement.

6.  Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, GCM Order Number 232, dated 23 December 2004, confirmed the applicant's conviction and the sentence had been affirmed and directed, Article 71(c) of the UCMJ having been complied with, that the BCD portion of the applicant's sentence be executed.  On 19 December 2005, the applicant was discharged after completing 3 years, 5 months, and 19 days of creditable active service.

7.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated, in pertinent part, that a Soldier would 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.

8.  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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was only 17 and that his discharge was not right was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The record shows he was 18 years and 16 days old when he entered active duty and he successfully completed basic combat and advanced individual training.  This shows he was mature enough to satisfactorily serve if he wanted to.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their terms of military service.

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 undistinguished 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.

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)                                         AR20090019480



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ABCMR Record of Proceedings (cont)                                         AR20090019480



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