IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100023345 


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 honorable. 

2.  The applicant states:

* He was young and irresponsible
* His court-martial happened over 20 years ago
* He couldn't balance his account
* It was his first conviction in his life
* He served his country to the fullest 

3.  The applicant provides no documentary evidence in support of his application.

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 29 October 1970.  He enlisted in the Regular Army on 10 May 1989 for a period of 4 years.  He completed training and was awarded military occupational specialty 31C (Single Channel Radio Operator).  

3.  On 1 June 1990, he was convicted by a special court-martial of being absent without leave (AWOL) from 9 April 1990 to 24 April 1990, making a false official statement, wrongful appropriation of an amplifier, and uttering 3 bad checks.  He was sentenced to be reduced to pay grade E-1, to be confined for 3 months, to forfeit $482.00 pay for 3 months, and to be discharged from the service with a bad conduct discharge.  On 3 July 1990, the convening authority approved only so much of the sentence as provided for a reduction to E-1, a forfeiture of $482.00 pay for 3 months, confinement for 90 days, and a bad conduct discharge.  

4.  On 19 October 1990, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

5.  On 4 February 1991, the convening authority ordered the bad conduct discharge to be executed.

6.  He was discharged with a bad conduct discharge on 15 March 1991 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served a total of 1 year, 7 months, and 25 days of creditable active service with 87 days of lost time for this period of active service.

7.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 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.

8.  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.  





9.  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.

10.  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.  His record of service included one special court-martial conviction for numerous offenses and 87 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

2.  He contends he was young and irresponsible.  However, age is not a sufficiently mitigating factor.  He was 18 and 1/2 years old when he enlisted and he successfully completed training.       

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

4.  He contends his court-martial happened in 1990 and the bad conduct discharge has been on his record for 20 years.  However, the Army does not have nor has it ever had a policy that provides for the upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the Army Discharge Review Board or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, his discharge was proper and equitable and it accurately reflects his overall record of service.  As a result, there is an insufficient evidentiary basis to support 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)                                         AR20100023345



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ABCMR Record of Proceedings (cont)                                         AR20100023345



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