IN THE CASE OF:	  

		BOARD DATE:	    29 July 2010

		DOCKET NUMBER:  AR20100001119 


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 be upgraded to a general discharge. 

2.  The applicant states he is requesting an upgrade because he realizes his bad discharge is not fair.  He states that physical and mental problems to include traumatic brain injury (TBI) that resulted from a bad accident caused his performance to suffer.

3.  The applicant provides seven pages of miscellaneous Department of Veterans Affairs (VA) related documents. 

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 military records show he served in the Army National Guard prior to his enlistment in the Regular Army on 22 July 1987.  He completed initial entry training and he was awarded the military occupational specialty (MOS) of light wheel vehicle mechanic.  He was also promoted to pay grade E-4.

3.  A DA Form 3349 (Physical Profile), dated 7 August 1989, shows the applicant's medical condition as: "status post closed head injury with encephalopathy, resolved."  Block 3 (assignment limitations) of this form shows that he had no assignment limitations in his current MOS and he was worldwide deployable.

4.  On 15 February 1990, a special court-martial convicted the applicant of two specifications of larceny of twenty dollars on 10 and 11 August 1989.  His sentence included a bad conduct discharge.  

5.  Special Court-Martial Order 17, dated 10 September 1990, shows the sentence was affirmed.  The appellate review was completed and the sentence was ordered executed.

6.  Accordingly, on 28 September 1990, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3, section VI, as a result of court-martial, other.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 3 years and 19 days of active service.  It further shows he previously completed 4 months and 29 days of active service and 7 months and 12 days of inactive service. 

7.  On 22 December 1995, the Army Discharge Review Board denied the applicant's request for an upgrade of his bad conduct discharge to a general discharge.

8.  Army Regulation 635-200, paragraph 3-11, provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

9.  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 discharge with characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

10.  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 contends his discharge was not fair because accident related physical and mental problems including TBI caused his performance to suffer.  A DA Form 3349, dated 7 August 1989 indicates his medical condition was resolved and he had no assignment limitations.  The applicant committed the offenses for which he was convicted and separated on 10 and 11 August 1989.   However, even if he were diagnosed with a limiting medical condition, it would not justify the two acts of larceny for which he was convicted by a special court-martial.

2.  The applicant was issued a bad conduct discharge pursuant to the approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence ordered executed.  Conviction and discharge were affected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's entire military record was taken into consideration and given the seriousness of the offenses his service is appropriately characterized.

4.  Any redress by the ABCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR 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.  

5.  Based on the foregoing, there is insufficient basis to grant clemency 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)                                         AR20100001119



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)