IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100014648 


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 to a general discharge. 

2.  The applicant states he was discharged for writing bad checks.  However, he has since become disabled with burns over 50% of his body.  He is in the process of obtaining a loan to purchase a house and would like to qualify for military benefits in his state.  He adds that he was told even if he were discharged, he would be issued a pink identification card for the next 3 years.  This did not happen.  Nevertheless, he has made every attempt to improve his life and become a better person.  

3.  The applicant did not provide any documentary evidence. 

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 on 25 November 1986 and held military occupational specialty 62B (Construction Equipment Repairer).  He also executed a 3-year reenlistment on 6 September 1994 and attained the rank/grade of sergeant/E-5.

3.  On 16 July 1996, he pled guilty at a general court-martial to one specification of wrongfully and lawfully making and uttering certain checks for a total amount of $6,950.00 without sufficient funds between on or about 6 April 1996 and on or about 30 May 1996.  The court sentenced him to confinement for 2 months, a forfeiture of $583.00 pay for 2 month, reduction to private/E-1, and a bad conduct discharge.  

4.  On 13 December 1996, the convening authority approved the sentence and except for that part of the sentence extending to the bad conduct discharge, ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 

5.  On 20 October 1997, the U.S. Army Court of Military Review affirmed in part the findings of guilty, reassessed the sentence, and affirmed the approved sentence.

6.  Headquarters, 2nd Infantry Division, General Court-Martial Order Number 7, dated 7 April 1998, shows after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge executed.

7.  The applicant was discharged from the Army on 7 April 1999.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with section IV, chapter 3, of Army Regulation 635-200 (Personnel Separations), as a result of court-martial, with a bad conduct discharge.  This form also shows he completed a total of 12 years, 2 months, and 24 days of creditable military service and he had 49 days of lost time.  

8.  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.
9.  Army Regulation 635-200 governs the separation of enlisted personnel.  
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.  Army Regulation 635-200, paragraph 3-10 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial, which was warranted by the gravity of the offenses charged at the time.  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.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  The applicant was issued a bad conduct discharge pursuant to an approved sentence of a general court-martial.  Absent his offenses, there was no fundamental reason to convene a court-martial.  The underlying reason for his court-martial and ultimate conviction was his offenses.  Furthermore, the appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and the rights of the applicant were fully protected.  

3.  The Army has never had a policy wherein a convicted Soldier is issued a pink identification card for the purpose of using a military installation for a period of
3 years.  Additionally, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits. 

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This 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)                                         AR20100014648



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ABCMR Record of Proceedings (cont)                                         AR20100014648



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