IN THE CASE OF:	

		BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100008587 


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 his bad conduct discharge be upgraded.

2.  The applicant states:

* it was double jeopardy because after turning in all stolen equipment (18 protective masks) he was still charged for them
* he received poor representation from his chain of command and military attorney
* he never received a copy of his court-martial transcript after many requests
* his punishment was too harsh
* sergeants falsely testified against him
* no one could prove he was going to sell the stolen items
* a first sergeant on the jury wanted to give him a second chance in his infantry unit
* a lieutenant on the jury wanted to give him a second chance in his special forces unit
* it did not take 1 year and 8 months after he was incarcerated to be discharged as reflected in section III (original character of discharge) of his Army Discharge Review Board (ADRB) proceedings
* his bad conduct discharge has plagued him since his discharge
* he has not gotten into any trouble since his discharge
* he received custody of his two young children from his ex-wife due to mental and physical abuse bestowed upon them
* the attorney fees, phone bill fees, and other expenses became more than he could afford
* he went to his sergeants and commanding officers for help and they were of little assistance
* he became so desperate he stole 18 masks from the supply warehouse
* he points out he served in the Persian Gulf War and was very well decorated for it
* his son is serving in the Army today
* he admits he made a mistake

3.  The applicant provides page 1 of his ADRB proceedings in support of his 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 enlisted in the Regular Army on 8 January 1988.  He trained as a petroleum supply specialist and served in Southwest Asia from 3 January 1991 to 21 May 1991.  He was honorably discharged on 2 July 1991 for immediate reenlistment.  He reenlisted on 3 July 1991 and was honorably discharged on 31 March 1993 for immediate reenlistment.  He reenlisted on 1 April 1993 for a period of 2 years.

3.  On 26 September 1994, the applicant was convicted in accordance with his pleas by a special court-martial of conspiring to wrongfully sell military property (two specifications, total value of $4,260.00), stealing government property (value of $2,272.00), and selling military property (value of $2,272.00).  He was sentenced to be reduced to pay grade E-1, to be confined for 2 months, and to be discharged from the service with a bad conduct discharge.  On 8 March 1995, the convening authority approved the sentence.

4.  On 30 August 1995, the U.S. Army Court of Criminal Appeals issued a notice of court-martial order correction which corrected the applicant's special court-martial to reflect the offense alleged in specification 2 of charge II (conspiracy to commit larceny of military property) was a conspiracy to commit the offense of wrongful sale of military property.

5.  On 24 January 1996, the U.S. Army Court of Criminal Appeals denied the applicant's petition for review.  On 13 March 1996, the convening authority ordered the bad conduct discharge to be executed.

6.  Accordingly, the applicant was discharged with a bad conduct discharge on 8 May 1996 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial.  He had served a total of 8 years, 2 months, and 13 days of creditable active service.

7.  On 10 September 2008, the ADRB denied the applicant's request for an honorable discharge.  Section III of these proceedings show, in pertinent part, he was sentenced to receive a bad conduct discharge on 26 September 1994 and he was discharged with a bad conduct discharge on 8 May 1996.

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 states 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 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 contentions that it was double jeopardy, he received poor representation from his chain of command and military attorney, sergeants falsely testified against him, and no one could prove he was going to sell the stolen items relate to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.

2.  Although the applicant contends it did not take 1 year and 8 months after he was incarcerated to be discharged as reflected in section III of his ADRB proceedings, the evidence of record shows he was convicted by a special court-martial on 26 September 1994 and his appellate process was not completed until 24 January 1996.  He was discharged on 8 May 1996. 

3.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  The trial by 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 the applicant was convicted.

5.  The applicant's prior honorable discharges and his combat service in Southwest Asia were noted.  However, his record of service during his last enlistment included one special court-martial conviction for conspiring to steal military property, conspiring to sell military property, stealing government property, and selling stolen military property.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgraded 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)                                         AR20100008587



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)