BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100013749 


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 to a general under honorable conditions discharge.

2.  The applicant states that during his pretrial agreement he agreed to plead guilty based on the fact that after a period of time his BCD would be upgraded.

3.  The applicant provides a character references in support of this 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’s record shows he enlisted in the Regular Army on 25 September 1987.

3.  On 1 September 1991, the applicant pled guilty at a general court-martial to one specification of drunk and reckless driving resulting in an accident and personal injury and two specifications of involuntary manslaughter.  He was found guilty of the aforementioned offenses.

4.  On 16 December 1991, his sentence was adjudged.  The applicant was sentenced to be reduced to private/E-1, confinement for 3 years, and to be discharged with a BCD.  The sentence was approved and, except for the part of the sentence extending to the BCD, was ordered to be executed.

5.  On 22 May 1992, the U.S. Army Court of Military Review affirmed the findings of guilty, found the sentence correct in law and fact, and affirmed the sentence.

6.  On 4 September 1992, the appropriate authority ordered the BCD duly executed.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 25 September 1992 under the provisions of Army Regulation 635-200 (Personnel Separations) by reason of conviction by a court-martial.  This form further lists the applicant's character of service as "bad conduct."

8.  The character references the applicant submitted were from family friends.  These individuals note that the applicant is friendly, honest, and giving.

9.  References:

	a.  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.

	b.  Army Regulation 635-200 provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

	c.  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 record is devoid of any evidence and he did not provide any evidence that he was ever told his BCD would be upgraded to a general under honorable conditions discharge.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade a BCD through the passage of time.

2.  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.  Therefore, there is no legal basis for granting his request for relief.

3.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct 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)                                         AR20100013749



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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