IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100016944 


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 1986 bad conduct discharge be upgraded to a general discharge.

2.  The applicant states he would like the blemish removed from his record for his peace of mind.  He states he received the bad conduct discharge at a time in his life when he was a teenager and very immature.  He states he went out drinking with some friends, stole a car to get back to the barracks, and then out of stupidity, he stole some money from one of his roommates.  He notes he made full restitution for the car and for the money and had to do time at a minimum security facility in Kentucky.

3.  The applicant notes that since that time he has done nothing to break the law and has tried to be a role model for his children.  He states he is currently an usher in his church, in the male choir, and a sexton.  He notes he has 16 years of service with two local fire departments, is a safety officer, and is a first responder with his local emergency medical service.

4.  The applicant provides three character references in support of his request.

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.  Records available to the Board indicate the applicant enlisted in the Regular Army on 14 February 1985.  He was 18 years of age at the time and a high school graduate.  He successfully completed training and was assigned to a field artillery unit in Europe.  The highest pay grade he attained was E-2.

3.  In December 1985, the applicant was convicted by a special court-martial of:

* stealing an automobile valued at 2,000 deutsche marks on 15 August 1985
* forging a $300.00 check on 5 August 1985
* wrongfully failing to stop after a traffic accident on 17 August 1985

4.  The court sentenced the applicant to a forfeiture of $426.00 per month for 6 months, reduction to pay grade E-1, confinement for 6 months, and a bad conduct discharge.  The convening authority approved the sentence and affirmed the findings and sentence.

5.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the Army discharged the applicant on 1 October 1986 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."

6.  The character references the applicant submitted were from a family friend, his pastor, and another religious official.  The individuals all note the applicant is committed and a successful and contributing member of the community.

7.  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.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

2.  The applicant's contentions that he was young, made restitution, completed his sentence, and that he has been a good citizen since his discharge are not sufficiently compelling or mitigating to warrant the relief requested.

3.  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 the applicant's request for relief.

4.  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.

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



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)                                         AR20100016944



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ABCMR Record of Proceedings (cont)                                         AR20100016944



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