BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100012201 


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 (BCD) be upgraded.  

2.  The applicant states the following:

* He was immature at the time of discharge
* He was unable to conform due to his immaturity
* He is now mature
* He desires an upgrade in order to be eligible for benefits and possible enlistment in the National Guard

3.  The applicant provides no additional documents 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.  His record shows he was born on 13 April 1967.  He enlisted in the Regular Army on 8 October 1985 at the age of 18 years, 5 months, and 26 days.  

3.  On 30 October 1986, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for failure to obey an order or regulation and insubordinate conduct towards a noncommissioned officer.  

4.  He was barred from reenlistment in April 1987.  His DA Form 
4126-R (Bar to Reenlistment Certificate) indicates he received a summary 
court-martial on 30 January 1987 for wrongful appropriation.  He was sentenced to a forfeiture of $250.00 pay for 1 month and 30 days of hard labor without confinement.  The court-martial proceedings are not available.  

5.  Item 27 (Remarks) on his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was confined by civil authorities on 12 April 1987 for violation of parole and he was returned to military control on 21 May 1987.  

6.  On 29 June 1987, he accepted NJP under Article 15 for wrongfully appropriating an automobile of a value of about $9,500.00, the property of a specialist four, and disobeying a lawful command.  

7.  On 2 July 1987, he was convicted by a special court-martial of operating a passenger car while drunk and wrongfully possessing 10.69 grams of marijuana.  He was sentenced to a BCD, a forfeiture of $438.00 pay for 6 months, and confinement for 6 months.  On 12 April 1987, the convening authority approved the sentence and, except for that portion extending to a BCD, ordered it to be executed.  

8.  On 24 June 1988, the U. S. Army Court of Military Review affirmed the findings of guilty and the sentence.  The BCD was ordered to be executed on 9 January 1989.

9.  He was discharged on 19 January 1989 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, section IV, as a result of court-martial.  He completed a total of 2 years, 9 months, and 8 days of creditable active service with 184 days of lost time.

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a BCD 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.

11.  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.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of any evidence showing he was less mature than similarly-aged Soldiers who managed to serve honorably.  His contentions in regard to his immaturity and inability to conform are issues not sufficiently mitigating to warrant relief in this case.  

2.  The trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  His service record shows he received two Article 15s and was convicted by a summary court-martial and special court-martial.  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, his record of service is insufficiently meritorious to warrant a general or honorable 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)                                         AR20100012201



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ABCMR Record of Proceedings (cont)                                         AR20100012201



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