IN THE CASE OF:	  

		BOARD DATE:	 26 May 2011

		DOCKET NUMBER:  AR20110001006 


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 (BCD).

2.  The applicant states: 

* it was a first offense
* prior to the incident that led to his court-martial action and BCD, he received two Good Conduct Medals and completed 9 years of service
* the court-martial action was severe and possibly biased
* he is trying to advance in his career and the discharge is a barrier to employment

3.  The applicant provided copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Unit Supply Specialist Course Diploma
* Certificate of Achievement 
* Honorable Discharge Certificate
* Vocational Education Certificate
* Computer Training Certificate 

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 enlisted in the Regular Army on 7 November 1979 at the age of 21.  His records show he completed basic combat and advanced individual training and he was awarded military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  The record shows a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 11 September 1986 for absenting himself without authority in order to avoid company formation.  

4.  On 27 October 1988, a special court-martial (SPCM) found the applicant guilty of violating Article 123 of the UCMJ, falsifying a signature with intent to defraud.  The resulting sentence was a reduction to private/E-1, confinement for 6 months, a forfeiture of $447.00 pay for 6 months, and a BCD.

5.  SPCM Order Number 1, Headquarters, U.S. Army, Berlin, dated 4 January 1989, shows the convening authority approved the portion of the sentence that provided for confinement for 2 months, a forfeiture of $447.00 pay for 2 months, reduction to private/E-1, and a BCD.

6.  On 19 June 1989, the U.S. Army Court of Military Review affirmed the guilty findings and the sentence.

7.  On 2 October 1989, Headquarters, U.S. Army Armor Center and Fort Knox, SPCM Order Number 152 directed that Article 71c having been complied with the BCD be executed.

8.  On 13 November 1989, the applicant was discharged under the provisions of section 4, chapter 3, Army Regulation 635-200 (Personnel Separations), by reason of court-martial with a BCD.  The DD Form 214 he was issued shows he completed a total of 9 years, 10 months, and 18 days of creditable active military service and he had accrued 50 days of lost time due to being in confinement.

9.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 23 January 1997, he was notified he was properly and equitably discharged and his request to change the character of his discharge was denied.

10.  The applicant provided documentation showing his post-service education achievements. 

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, in effect at the time, provided the policies and procedures for separating members with a dishonorable discharge or BCD.  It stated a Soldier will be given a BCD pursuant only to an approved sentence of a general or SPCM and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

12.  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 has been carefully considered.  However, there is insufficient evidence to support this claim.

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 applicant's documentation of his post-service education are noteworthy.  However, they alone are not sufficiently mitigating to support an upgrade of his discharge.

4.  The evidence reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.  In addition, his record reveals a disciplinary history prior to the SPCM that led to his BCD.  Therefore, given the gravity of the offenses resulting in his court-martial conviction and BCD, his overall record of service is not sufficiently meritorious to support clemency and/or an upgrade of 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)                                         AR20110001006



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ABCMR Record of Proceedings (cont)                                         AR20110001006



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