IN THE CASE OF:	

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20090021416 


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 (BCD) to a general discharge (GD).

2.  The applicant states he is not proud of what he did when he was younger.  He states there is no injustice but he wants the upgrade as a matter of clemency for himself, his family, and most importantly for his father.

3.  The applicant provides no supporting 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 enlisted in the Regular Army on 13 July 1982 with prior service. He reenlisted on 15 April 1985, as a specialist four (SP4)/E-4.

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 18 August 1986, for leaving the post while his pass privileges were suspended.  

4.  On 1 October 1986, the applicant went absent without leave (AWOL).  On 
12 June 1987, he was apprehended by military authorities.  He was subsequently returned to his former command (Fort Carson, CO), placed in confinement on
22 June 1987, and released from confinement the following day. 

5.  On 11 August 1987, a general court-martial found the applicant guilty of being AWOL from 1 October 1986 through 12 June 1987; and with intent to defraud, falsely make the signature of another Soldier to a certain check in the amount of $100.00.  His sentence included a dishonorable discharge.

6.  On 25 September 1987, the general court-martial convening authority approved the finding of the court-martial but modified the sentence to a BCD, forfeiture of all pay and allowances, reduction to pay grade E-1, and confinement for 18 months.  The general court-martial convening authority directed that confinement in excess of 12 months was to be suspended and, except for the BCD, the sentence be executed.

7.  On 15 January 1988 the United States Army Court of Military Review held that the findings of guilty and the sentence, as approved by the convening authority, were correct and affirmed the findings and sentence.

8.  The applicant was placed on excess leave effective 23 March 1988 pending final appellate review.

9.  On 22 June 1988, United States Army Correctional Activity General Court-Martial Order Number 384 directed that, since the sentence was affirmed, the applicant had served his period of confinement, and Article 71(c), UCMJ having been complied with, the BCD was to be duly executed. 

10.  The applicant was discharged with a BCD on 12 July 1988.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 12 July 1988 shows the following record of service:

* net active service this period		1 year, 9 months, and 14 days
* prior inactive service				1 year, 2 months, and 22 days
* prior active service					3 years, 1 month, and 8 days

12.  Evidence of record also shows he had 529 days of lost time (254 due to AWOL and 275 due to confinement) and 112 days of excess leave.

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.

14.  Black's Law Dictionary defines clemency to be an act of grace.  It is based on the policy of fairness, justice, and forgiveness.  It is not a right but rather a privilege, and one who is granted clemency does not have the crime forgotten, but is forgiven and treated more leniently for the criminal acts.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he is not proud of what he did when he was young.  He states there is no injustice but he wants the upgrade for himself, his family, and most importantly for his father as a matter of clemency.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offenses for which he was charged and is appropriate for the applicant's overall record of military service during his second enlistment.

3.  By his own admission, the applicant does not believe there was an error or injustice in his court-martial, appellate review, or subsequent discharge.

4.  The applicant forged the signature of a fellow Soldier and remained AWOL until he was apprehended by military authorities.  To grant an upgrade based solely on a request for clemency would place him on an equal footing for benefits and privileges with Soldiers who did not commit any such acts.

5.  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.
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)                                         AR20090021416



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ABCMR Record of Proceedings (cont)                                         AR20090021416



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