IN THE CASE OF:	  

		BOARD DATE:	    27 July 2011

		DOCKET NUMBER:  AR20100027582 


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 (BCD) be upgraded to an honorable discharge (HD).  

2.  The applicant states he does not claim the discharge he received was unjust but his post service conduct, as he outlines in his application, has been excellent. He requests his BCD be upgraded not to gain benefits but instead to lay this mistake to rest. 

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's record shows he enlisted in the Regular Army (RA) on
23 July 1997, and was trained in and awarded military occupational specialty (MOS) 95B (Military Police).  

3.  The record shows the applicant was promoted to the rank of private first class/E-3 on 23 July 1998, and that this is the highest rank he attained while serving on active duty.  

4.  The record shows the applicant earned the Army Service Ribbon.   His record documents no acts of valor or significant achievement.  

5.  The applicant’s disciplinary record includes his receipt of a General Officer Memorandum of Reprimand (GOMOR) on 11 May 1999, for driving while intoxicated on 15 April 1999.  

6.  On 19 July 1999, a General Court-Martial (GCM) found the applicant guilty of violating Article 111 of the Uniform Code of Military Justice (UCMJ) by driving while intoxicated on 15 April 1999; and of eight specifications of violating Article 121 of the Uniform Code of Military Justice (UCMJ) for wrongfully appropriating on eight separate occasions between 19 and 24 February 1999.  The resultant approved sentence promulgated in Headquarters, US Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas GCM Order Number 33, dated 10 November 1999, was reduction to private/E-1, forfeiture of all pay and allowances, confinement for four months and a BCD.  

7.  On 28 June 2000, the United States Army Court of Criminal Appeals affirmed only so much of the finding of guilty of Specification 1 of Charge II as finds the applicant wrongfully appropriated a debit card.  It further dismissed specification 2 of Charge II.  The court affirmed the remaining findings of guilty and the sentence.

8.  On 24 January 2001, Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, GCM Order Number 1 directed  Article 71c having been complied with, the BCD portion of the sentence be duly executed.  On 5 March 2001, the applicant was discharged accordingly.  

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on 5 March 2001 confirms he was discharged under the provisions of chapter 3, Army Regulation 635-200, by reason of court-martial and that he received a BCD.  It also shows he completed a total of 3 years, 3 months and 19 days of creditable active military service and had accrued 111 days of time lost due to confinement.

10.  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 a Soldier would be given a BCD pursuant only to an approved sentence of a GCM or special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

11.  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 contention that his BCD should be upgraded to an HD based on his outstanding post service conduct has been carefully considered.  However, while admirable, this factor alone is not sufficiently mitigating to support clemency.  

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ 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.

3.  The evidence of record reveals no error or injustice related to the applicant's 
court-martial and/or his subsequent discharge.  Therefore, based on the gravity of the offense resulting in his court-martial conviction and BCD it would not be appropriate to upgrade his discharge.

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)                                         AR20100027582



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ABCMR Record of Proceedings (cont)                                         AR20100027582



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