IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100028833 


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 an upgrade of his bad conduct discharge to a discharge under other than honorable conditions.

2.  The applicant states, in effect, that his discharge should be upgraded due to the passage of time since his court-martial and confinement.

3.  The applicant provides no additional evidence.

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 records show he enlisted in the Regular Army on 11  August 1999 and held military occupational specialty 45B (Small Arms Repairer).  The highest rank/grade he attained during his military service was private/E-2.
3.  On 9 November 2000, he pled guilty and was convicted by a general court-martial at Fort Irwin, CA, of:

* two specifications of being absent without leave from 12 to 31 July 2000 and from 18 to 23 August 2000
* one specification of failing to go at the time prescribed to his appointed place of duty
* two specifications of driving a pick-up truck while drunk
* two specifications of larceny
* one specification of wrongfully appropriating an automobile
* one specification of burglary
* one specification of breaking restriction
* one specification of false swearing
* one specification of wrongfully using methamphetamine and cocaine

4.  The court sentenced him to a forfeiture of all pay and allowances, reduction to the lowest enlisted grade, confinement for 3 years, and a bad conduct discharge.

5.  On 19 March 2001, the convening authority approved the sentence and, except for that part of the bad conduct discharge, he ordered the sentence executed.  The record of trial was forwarded to the Judge Advocate General of the Army for appellate review.

6.  In March 2003, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

7.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 181, dated 6 March 2003, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed.

8.  He was accordingly discharged from the Army on 19 May 2003.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial.  This form further shows his character of service as bad conduct.  He completed a total of 1 year, 7 months, and 12 days of creditable military service with lost time from 30 August 2000 to 15 October 2002.

9.  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.

10.  Paragraph 3-7a of Army Regulation 635-200 states 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.

11.  Paragraph 3-7b of Army Regulation 635-200 states 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.  

12.  Army Regulation 635-200, paragraph 3-7c, states a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows his trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which the applicant was convicted.

2.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

3.  With respect to his argument, the Army has never had a policy wherein a character of service is upgraded due to the passage of time.

4.  Based on his record of serious misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service sufficiently unsatisfactory to warrant a punitive discharge instead of an administrative discharge.  Therefore, he is not entitled to 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 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)                                         AR20100028833



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ABCMR Record of Proceedings (cont)                                         AR20100028833



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