BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100017224 


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 felony charge be dropped from his records so he can purchase a firearm legally (in effect, his general court-martial conviction be set aside). 

2.  The applicant states after the proper background check was done he purchased a firearm to protect himself and his family and thought nothing more of it.  Two weeks later he received a letter from the Bureau of Alcohol, Tobacco, Firearms and Explosives Agency informing him that he was a felon in possession of a firearm since he had been convicted of military crimes in 1985.  He was instructed to return the firearm as soon as possible, which he did.  

3.  He states it was then he realized his past had come back to haunt him after 25 years.  He points out:

* He was guilty then and he admitted to the charges against him
* He made a terrible mistake in his young life and destroyed a promising and bright future in the military
* He is still ashamed of himself
* He is a simple blue collared worker with simple values and beliefs
* He has been a law abiding citizen
* He is truly sorry for his actions
* He is not interested in any Department of Veterans Affairs benefits or an upgrade of his discharge 


4.  The applicant provides:

* Letter, dated 28 May 2010, from the National Personnel Records Center in St. Louis, MO
* Certification of Military Service
* Letter, dated 2 February 2010, from the U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives
* Documentation pertaining to his general court-martial
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Service personnel records

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 was born on 10 July 1960.  He enlisted in the Regular Army on 29 September 1978, served as a wheel vehicle mechanic, and was honorably discharged on 29 March 1982 for immediate reenlistment.  He reenlisted on 
30 March 1982 for a period of 3 years.  He was promoted to sergeant on 
6 September 1982.

3.  On 27 December 1985, he was convicted by a general court-martial of stealing 2700 liters of fuel and being derelict in the performance of his duties.  He was sentenced to be reduced to pay grade E-1, a forfeiture of all pay and allowances, to be confined for 22 months, and to be discharged from the service with a bad conduct discharge.  On 20 February 1986, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for 9 months, a forfeiture of all pay and allowances, and reduction to pay grade E-1.  

4.  On 15 May 1986, the U.S. Army Court of Military Review affirmed the findings and sentence.  On 16 June 1986, the convening authority ordered the bad conduct discharge to be executed.
5.  He was issued a bad conduct discharge on 11 July 1986 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served 7 years, 1 month, and 28 days of creditable active service with 225 days of lost time.  

6.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states 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. 

7.  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:

The applicant's contentions were carefully considered.  However, any redress by this Board of the finality of a court-martial conviction is prohibited by law.  Therefore, there is no basis for granting the 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)                                         AR20100017224



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ABCMR Record of Proceedings (cont)                                         AR20100017224



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