IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20090021248 


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 general under honorable conditions.

2.  The applicant states:

* he joined the Army to make it a career and to serve his country honorably
* he is submitting documents showing his excellent performance while he was in the Army
* the incidents that occurred while he was in the Army should not reflect his entire service

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letter of appreciation, dated 16 May 1977
* letter of appreciation, dated 9 June 1975
* letter of appreciation, dated 21 June 1976
* letter of appreciation, undated
* certificate of achievement, dated 10 June 1975
* certificate of achievement, dated April 1976

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.  After 1 year, 11 months, and 18 days of total active service of a 2-year enlistment, the applicant reenlisted in the Regular Army for 5 years on 22 December 1975.  While in the Army, he was promoted through the ranks to pay grade E-5.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 17 February 1979 for four incidents of failure to go at the time prescribed to his appointed place of duty.  His punishment included:

* forfeiture of $150.00 pay
* extra duty for 14 days
* restriction for 14 days

4.  On 22 March 1979, NJP was imposed against him for two incidents of failure to go at the time prescribed to his appointed place of duty.  His punishment included:

* reduction to pay grade E-4
* forfeiture of $100.00 pay
* extra duty for 30 days

5.  On 6 March 1980, the applicant was convicted pursuant to his pleas by a general court-martial of 33 specifications of moving checks that he did not or would not have sufficient funds for payment of the checks in full with intent to defraud from 6 October 1979 through 26 November 1979.

6.  His sentence included:

* discharge from the service with a BCD
* confinement at hard labor for 7 months
* 
reduction to pay grade E-1
* forfeiture of $350.00 pay per month for 10 months

7.  The convening authority approved the sentence as adjudged on 3 April 1980 with the forfeiture of pay becoming due on and after the date of approval by the convening authority.

8.  The U.S. Army Court of Military Review, having found the findings of guilty and the sentence correct in law and fact, and having determined on the basis of the entire record that both should be approved, affirmed the findings of guilty and the sentence on 26 August 1980.

9.  On 8 December 1980, General Court-Martial Order Number 832, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, noting that the findings and sentence as approved by the convening authority had been affirmed, ordered that the BCD be executed.

10.  On 9 January 1981, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, as a result of a duly reviewed and affirmed general court-martial conviction.  He had completed 4 years, 7 months, and 8 days of net active service during this period and he had approximately 148 days of lost time due to confinement.  He was furnished a BCD.

11.  The applicant submits four letters of appreciation and two certificates of achievement reflecting his conduct and achievements for his contributions during specific tasks that he received while he was in the Army.

12.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that 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 modify the severity of the punishment imposed.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, established the policy and procedures for separating members with a dishonorable or BCD.  The regulation provided that a Soldier would be given a BCD pursuant only to an approved 

sentence of a general or special court-martial.  It further provided that the appellate review must be completed and the affirmed sentence ordered duly executed.

14.  Paragraph 3-7b of Army Regulation 635-200 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were considered as well as his letters of appreciation and certificates of achievement.

2.  However, he had NJP imposed against him for acts of indiscipline.  He was convicted pursuant to his pleas by a general court-martial of 33 specifications of knowingly uttering checks with insufficient funds for payment of the checks.  He has not shown that the process and/or procedures used in determining his guilt or innocence were erroneous or unjust.  The issues he now raises are not sufficiently mitigating to warrant the requested relief and could have been/should have been considered during the adjudication process.

3.  His records show that was given a BCD pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence duly executed.

4.  Based on his overall record of service, he did not serve honorably or under honorable conditions.  The BCD he received appropriately characterizes his service and is not severe considering the nature of his offenses.

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)                                         AR20090021248



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ABCMR Record of Proceedings (cont)                                         AR20090021248



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