IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100016118 


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 upgrade of his bad conduct discharge (BCD) to an honorable discharge (HD).

2.  The applicant states, in effect, that it has been over 15 years since his discharge and his record is now clear.

3.  The applicant provides:

* document titled “Iberia Parish Clerk of Court”
* five character reference statements

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 enlisted in the Regular Army on 25 July 1990.  He was trained in, awarded, and served in military occupational specialty 43M (Fabric Repair Specialist).

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) confirms, in Item 18 (Appointments & Reductions), he was promoted to specialist four (SP4/E-4) on 25 September 1992.  This was the highest rank/grade he attained while serving on active duty.  It also shows he was reduced to private (PV1)/E-1 on 4 April 1995.

4.  The DA Form 2-1 shows in item 21 (Time Lost) that the applicant accrued time lost during the period 23 January 1995 to 17 August 1995, due to military confinement.

5.  Headquarters, 25th Infantry Division, Schofield Barracks, Hawaii, General Court-Martial (GCM) Order Number 7, dated 4 April 1995, shows the applicant, pursuant to his pleas, was found guilty of the following five charges of violating the indicated Articles of the Uniform Code of Military Justice (UCMJ):

* Article 108 - willfully damaging government property
* Article 128 – (2 specifications) assault with force likely to produce grievous bodily harm
* Article 129 – breaking and entering with the intent to commit assault
* Article 134 – (2 specifications) wrongfully communicating a threat to injure/kill
* Article 91 – (additional charge) disobeying a lawful order

6.  The resultant sentence imposed by the military judge was a reduction to PV1/E-1, forfeiture of $400.00 pay per month for 47 months, confinement for 47 months, and a BCD.  The General Court-Martial Convening Authority (GCMCA) approved the sentence and ordered that it be executed with the exception of the portion that provided for the BCD.  He also ordered that the execution of that part of the sentence extending to confinement in excess of 12 months be suspended for 12 months unless sooner vacated.

7.  On 18 June 1996, the U.S. Army Court of Criminal Appeals, after a review of the entire record in the applicant’s case, upheld the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, it affirmed the findings and the sentence.


8.  On 27 February 1997, GCM Order Number 24, issued by Headquarters, United States Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, directed that, Article 71c of the UCMJ having been complied with, the BCD portion of the sentence be duly executed.  On 24 March 1997, the applicant was discharged accordingly.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his discharge shows that he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), section IV, as a result of court-martial.  He completed a total of 6 years, 1 month, and 3 days of creditable active military service and accrued time lost during the period 23 January to 17 August 1995.

10.  The applicant provides a letter from the Deputy Clerk of Court, Iberia Parish dated 17 February 2010.  It shows that a criminal record was searched from 1 January 1994 to the present and shows that the applicant was charged with a speeding violation and paid a fine in the amount of $143.00 on 21 June 2000.

11.  The applicant provides five character reference statements from individuals who indicate he is kind, respectful, helpful, reliable, dependable, and hardworking.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or BCD.  It stipulates, in pertinent part, that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the BCD portion of the sentence is ordered duly executed.

13.  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.

14.  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.

15.  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 contends that his BCD should be upgraded to an HD.

2.  The applicant was discharged after completion of the appellate process and only after his sentence was affirmed by the appropriate appellate court.  His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  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.

4.  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


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)                                         AR20100016118





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ABCMR Record of Proceedings (cont)                                         AR20100016118



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