IN THE CASE OF:	  

		BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090021251 


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 that his Bad Conduct Discharge (BCD) be upgraded.

2.  The applicant states he was informed by the U.S. Army Judge Advocate General's Office, his unit commander, and an official at the Post Out-Processing Center that the character of his discharge would be overturned 6 months after his discharge date.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 on 15 August 1979.  He was trained in and awarded military occupational specialty 88M (Motor Transport Operator).

3.  On 6 October 1988, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for violating a lawful regulation by wrongfully purchasing rationed items in excess of the authorized monthly dollar limit while in the Republic of Korea.

4.  A DA Form 4187 (Personnel Action), dated 18 April 1989, shows the applicant's duty status was changed from present for duty to absent without leave (AWOL) effective 17 April 1989.  A second DA Form 4187, dated 18 August 1989, shows he surrendered to military authorities and returned to military control effective 22 July 1989.

5.  On 18 September 1989, a general court-martial (GCM) found the applicant guilty of one specification of being AWOL and six specifications of uttering checks without sufficient funds (with intent to defraud).

6.  The applicant's sentence consisted of reduction to the rank of private/E-1, a forfeiture of all pay and allowances, confinement for 3 months, and to be discharged from the service with a BCD.

7.  Effective 17 October 1989, the applicant was placed on excess leave pending appellate review of his BCD.

8.  On 19 December 1989, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

9.  U.S. Army Armor Center, Fort Knox, Kentucky, GCM Order Number 52, dated 6 July 1990, affirmed the applicant's conviction and the sentence and directed, Article 71(c) of the UCMJ having been complied with the sentence would be duly executed.  On 21 August 1990, the applicant was discharged with a BCD, under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), by reason of court-martial.

10.  Army Regulation 635-200 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.
11.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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.

13.  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 informed the character of his service would be overturned after 6 months of date of his discharge has been carefully considered.  However, the Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.

2.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  This 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.  

3.  The evidence of record confirms the applicant's conviction and discharge were effected in accordance with applicable law and regulations, and there is no evidence of any error or injustice related to the court-martial process.  As a result, there is an insufficient evidentiary basis to support clemency 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)                                         AR20090021251



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ABCMR Record of Proceedings (cont)                                         AR20090021251



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