IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100020348 


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 discharge character of service from bad conduct to under other than honorable conditions.

2.  The applicant states, in effect, he applied for a home loan guarantee from the Department of Veterans Affairs (VA), but was denied for having a "dishonorable discharge" although his DD Form 214 (Certificate of Release or Discharge from Active Duty) states "Bad Conduct."  He states his appropriate character of service should be under other than honorable conditions.  He states the nature of the incident that resulted in his discharge was nonviolent and did not cause bodily harm.  He concludes by stating he accepted responsibility for his actions and he should receive an upgrade, as he served his country honorably and has since led a crime-free life.  

3.  The applicant provides:

* DD Form 214
* Sun Trust Bank Pre-Qualification Letter
* VA Home Loan Eligibility Decision Letter
* Personal Statement

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 record shows he enlisted in the Regular Army on 18 July 1991.  He completed training and he was awarded military occupational specialty 92A (Automated Logistical Specialist).  The highest rank/grade he attained while serving on active duty was private (PV2)/E2.

3.  Charges were preferred against him for obtaining services under false pretenses, between 15 February 1992 and 26 March 1992, from the American Telephone and Telegraph Company of a value of about $2,551.30. 

4.  On 8 January 1993, he pled guilty at a general court-martial at Frankfurt, Germany, to one specification of obtaining services under false pretenses, between 15 February 1992 and 26 March 1992, from the American Telephone and Telegraph Company of a value of about $2,551.30.  He was sentenced to reduction to the rank/pay grade private/E-1, and a bad conduct discharge.

5.  On 18 March 1993, the convening authority approved the sentence and, except for the bad conduct discharge, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

6.  On an unknown date in 1993, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 7 December 1993, the U.S. Court of Military Appeals denied his petition for review.

7.  General Court-Martial Order Number 38,Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, dated 31 January 1994, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered his bad conduct discharge executed.

8.  On 11 March 1994, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3.  His DD Form 214 shows he was discharged as a result of court-martial, with a bad conduct character of service.  This form further shows he completed a total of 2 years, 7 months, and 24 days of creditable military service.
9.  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.

10.  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.

11.  Army Regulation 635-200, paragraph 3-7c, provides that an under other than honorable conditions discharge is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial in certain circumstances.

12.  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.  

13.  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's request for upgrade of his discharge character of service from bad conduct to under other than honorable conditions was carefully considered; however, there is insufficient evidence to support his request.  

2.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offense 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 he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.  

3.  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.

4.  His acceptance of responsibility, fulfillment of the requirements of his punishment, and post-service personal and professional accomplishment were considered; however, they are not sufficiently mitigating to grant the requested relief.   In view of the foregoing, there is insufficient basis to grant 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)                                         AR20090019040



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100020348



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1