BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100008430 


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 general under honorable conditions.

2.  The applicant states the punishment was much too severe for the crime when he was only trying to retrieve what was his.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 records show he enlisted in the Regular Army for a period of 3 years on 24 June 1976 and held military occupational specialties 91B (Medical Noncommissioned Officer) and 72E (Combat Telecommunications Center Operator).  The highest rank/grade he attained during his military service was sergeant/E-5.

3.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 24 March 1977 for failing to go to his appointed place of duty.

4.  On 10 June 1982, he was placed under suspension of favorable actions while being investigated for stealing $10,494.53 in U.S. Government funds by presenting fraudulent travel vouchers and subsequently receiving payment for them.

5.  On 17 January 1983, he pled not guilty at a general court martial to two UCMJ charges, Articles 81 and 121, with the following specifications, respectively:

	a.  conspiracy to commit larceny of U.S. currency of the value of $1,893.94, the property of the U.S. Government, by presenting a pay voucher claiming reimbursement for service member travel, for approval and payment which was false and fraudulent in that said travel was not actually performed; and

	b.  stealing U.S. currency of a value of $1,893.94, the property of the U.S. Government.

6.  On 18 January 1983, the court found him guilty of larceny of U.S. Government property of a value of "$1,757.94."  The court sentenced him to reduction to private/E-1, forfeiture of all pay and allowances, and a bad conduct discharge.

7.  On 16 February 1984, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  He was discharged on 24 May 1984.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged in accordance with chapter 3 of Army Regulation 635-200 (Personnel Separations) as a result of a court-martial with a bad conduct discharge.  This form further shows the applicant completed a total of 6 years, 8 months, and 16 days of creditable military service.

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 characterization 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's request to have his bad conduct discharge upgraded to general under honorable conditions was carefully considered; however, there is insufficient evidence to grant relief.

2.  There is no evidence in his records, nor has the applicant provided any evidence, that shows his travel voucher was a rightful claim for travel he performed and therefore was entitled to reimbursement.

3.  His trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

4.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.



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)                                         AR20100008430



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Record of Proceedings (cont)                                         A