IN THE CASE OF::  

		BOARD DATE:	  12 December 2010

		DOCKET NUMBER:  AR20100015823 


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 general under honorable conditions.

2.  The applicant states he liked the Army and would like to take the mark off his name for better employment.

3.  The applicant provides the following:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 5689 (United States Army Oath of Reenlistment)
* DD Form 256A (Honorable Discharge Certificate), dated 4 October 1998
* DA Form 4980 (Department of the Army Certificate) announcing award
      of the Army Achievement Medal, dated 9 June 1998
* Certificate announcing award of the North Atlantic Treaty Organization (NATO) Medal for service with NATO
* Certificate from the 3d Battalion, 36th Armored Infantry Regiment for the period 19 October 1997 to 27 February 1998
* Multinational Division (N) Certificate of Appreciation for the period 
15 October 1997 to 15 July 1998


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.  Available records indicate the applicant enlisted in the Regular Army (RA) on
25 January 1996, for a period of 3 years.  He was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The applicant reenlisted in the RA on 5 October 1998 for a period of 4 years.

4.  On 4 February 2000, the applicant was arraigned and tried at a general court-martial.

	a.  He pled guilty and was found guilty of the charges and specifications of:

* conspiring with another Soldier to steal money from a convenience store
* Wrongfully stealing money and food stamps from the convenience store by means of force and violence
* wrongfully using cocaine between 17 November 1998 and 
17 December 1998 and on or about 2 March 1999
* being absent without authority from his unit from 2 March 1999 until 
5 March 1999
* Willfully disobeying a lawful order  on 18 December 1998, 
10 February 1999, and 2 March 1999, to remain on Fort Drum, New York
* Willfully disobeying on various occasions between 19 February and 
22 February 1999, a lawful command to sign in every four hours on weekends and at 1800 and 2200 on weekdays 
   
   b.  He was sentenced to a bad conduct discharge, confinement for
9 months, forfeiture of all pay and allowances, and reduction to the rank/grade of private (PV1)/E-1.
   c.  On 16 May 2000, the convening authority approved the sentence.  The bad conduct discharge was ordered executed and the applicant was to be credited with 82 days confinement against the sentence to confinement.
   
5.  The applicant's DD Form 214 shows he was discharged on 23 May 2001 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial, with a bad conduct discharge.

    a.  At the time of his discharge he had completed 4 years, 11 months, and 7 days of active service.

    b.  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he had received the Army Service Ribbon and Overseas Service Ribbon.

6.  Permanent Orders 364-34, Headquarters, 10th Mountain Division (Light Infantry), Fort Drum, New York, 30 December 1998, awarding him the Good Conduct Medal for the period 25 January 1996 to 24 January 1999, were found in his interactive Personnel Electronic Records Management System (iPERMS) file. 

7.  The applicant provided an Army Achievement Medal Certificate that was not listed on his DD Form 214 or in his iPERMS file.

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, in effect at the time, set forth the basic authority for the separation of enlisted personnel.
	
   a.  Paragraph 3-10 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed.

	b.  Paragraph 3-7b states 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 request that his bad conduct discharge be upgraded to general under honorable conditions was carefully considered and it was determined that there is insufficient evidence to support his request.

3.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:
________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___ X____  ____ X___  ____X___      DENY APPLICATION
X








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)                                         AR20100010501



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100015823



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1