IN THE CASE OF:	  

		BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110010024 


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 that his bad conduct discharge be upgraded to a general discharge under honorable conditions or an honorable discharge.

2.  The applicant states, in effect, the judge agreed to take 2 1/2 months of pay and reduction in rank, but not to the discharge.  He was not given the opportunity to receive a rehabilitative transfer.  He had no blemishes on his active duty record until the date in question.  He is a Desert Storm veteran who proudly served his country and would have liked to continue to do so.

3.  The applicant provides no additional 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.  He enlisted in the Regular Army in pay grade E-2 on 4 June 1997 for a period of 3 years.  His military occupational specialty (MOS) was 12B (Combat Engineer).  He had previously served 8 years, 11 months, and 15 days in the Georgia Army National Guard.   He served in Southwest Asia from 2 July to 
31 October 1991.

3.  On 20 March 1998, he pled guilty and was found guilty before a special 
court-martial of:

* stealing personal property of a value of more than $100, the property of another person
* unlawful entry
* "wrongfully and unlawfully making and subscribing under lawful oath a false statement"

4.  His sentence consisted of:

* confinement for 4 months
* the issuance of a bad conduct discharge

5.  On 28 July 1998, the convening authority approved the sentence and except for that part of the sentence extending a bad conduct discharge ordered the sentence executed.  The forfeiture of all pay and allowances required by Article 58b of the Uniform Code of Military Justice (UCMJ) was waived on 9 April 1998, effective 20 March 1998 until 19 September 1998, with the direction that such moneys be paid to his wife.

6.  His sentence to a bad conduct discharge was affirmed and ordered executed. The forfeiture of all pay and allowances required by Article 58b, UCMJ was waived on 9 April 1998, effective 20 March 1998 until 19 September 1998, with the direction that such moneys be paid to his wife.

7.  On 30 April 1999, he was issued a bad conduct discharge.  He had 
1 year, 7 months, and 21 days of net active service.  He also had 94 days of lost time.

8.  On 19 July 2000, the Army Discharge Review Board (ADRB) denied his request for a discharge upgrade.  The ADRB determined he was properly and equitably discharged.



9.  The UCMJ, Article 58b - Sentences:  provides for a forfeiture of pay and allowances during confinement:

	a.  A court-martial sentence by a special court-martial with a sentence of confinement for 6 months or less and a dishonorable or bad conduct discharge or dismissal shall result in a forfeiture of two-thirds of all pay due that member during such period.

	b.  In a case involving an accused who has dependents, the convening authority may waive any or all of the forfeitures of pay and allowances for a period not to exceed 6 months.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel:  

	a.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

	c.  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.

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.  Although the applicant contends the judge did not agree with the bad conduct discharge, it is clear the judge did, in fact, impose such a discharge.  When the convening authority approved the court-martial sentence the bad conduct discharge could not be executed until an appellate review was completed.  Upon completion of the appellate review his discharge was ordered executed.  There is no evidence the sentence to a bad conduct discharge was mitigated or suspended.  

2.  The charges of theft and unlawful entry he was convicted of are serious charges.  Theft of property from fellow Soldiers cannot be tolerated.  Therefore his service is considered unsatisfactory.  

3.  The evidence shows the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  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.

4.  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.

5.  Based on the foregoing, there is insufficient basis to upgrade his bad conduct discharge to a general discharge or an honorable 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)                                         AR20110010024



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ABCMR Record of Proceedings (cont)                                         AR20110010024



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