IN THE CASE OF:	  

		BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110003748 


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 general discharge under honorable conditions.

2.  The applicant states, in effect, he received a letter from the U.S. Army Criminal Investigation Command (CID), Fort Belvoir, VA, advising him of the removal of criminal history data pertaining to him from the files of the Federal Bureau of Investigation and National Crime Information Center, and that the fingerprints taken in connection with his December 1996 arrest record have been deleted from the CID's criminal files.

3.  The applicant provides a copy of the aforementioned letter and copies of his social security card, permanent resident card, and driver's license.

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 30 November 1994 and he held military occupational specialty 91B (Medical Specialist).

3.  On 9 December 1996, he was convicted by a general court-martial of one specification of reckless operation of a vehicle with no personal injury and one specification of assault with a dangerous weapon or means of force likely to produce grievous bodily harm or death.  The court sentenced him to forfeiture of all pay and allowances, confinement for 9 months, and a bad conduct discharge.

4.  On 7 February 1997, the convening authority approved the sentence and, except for the bad conduct discharge, the sentence was ordered executed.  The record of trial was forwarded to the Judge Advocate General of the Army for appellate review.

5.  On 8 December 1998, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

6.  On 28 May 1999, the U.S. Court of Appeals for the Armed Forces denied his petition for review.

7.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 72, dated 21 June 1999, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

8.  He was discharged from the Army on 30 June 1999 with a bad conduct discharge.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed a total of 4 years and 21 days of creditable military service and he had 190 days of lost time.

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.  Army Regulation 635-200 (Personnel Separations), 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  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.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  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.  The fact that CID removed a portion of his criminal history does not negate the fact that he was convicted by a general court-martial or erase his crime.

3.  Based on his overall record of indiscipline, 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 unsatisfactory.  Therefore, he is not entitled to a general 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 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)                                         AR20110003748



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ABCMR Record of Proceedings (cont)                                         AR20110003748



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