IN THE CASE OF:	  

		BOARD DATE:	  10 January 2012

		DOCKET NUMBER:  AR20110011364 


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 upgrade of his bad conduct discharge (BCD) to a general discharge.

2.  He states he:

* was told he was going to a BCD hearing, not a court-martial
* would like the BCD upgraded
* was an alcoholic when the incident happened
* was also depressed and still takes medicine for this condition
* has been out of the service and out of trouble for over 10 years
* has gotten help, stopped drinking, and he has been clean for 8 years

3.  He provides no additional documents.  

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.  With prior active and inactive service in the Army National Guard, the applicant enlisted in the Regular Army on 7 October 1988.

3.  On 13 October 1989, he was convicted pursuant to his guilty pleas by a general court-martial of:

* stealing a blank check of some value, the property of a private (PV2)/E-2
* with intent to defraud, falsely make and utter a check in the amount of $100.00, which check, it genuine, would operate to the legal harm of another

He was sentenced to a BCD, confinement for 15 months, and forfeiture of $500.00 pay for 15 months.

4.  On 7 December 1989, the court-martial convening authority approved only so much of the sentence as provided for a BCD, confinement for 6 months, and forfeiture of $466.00 pay for 6 months.  Except for the BCD, the sentence would be executed.

5.  On 21 February 1990, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

6.  On 15 June 1990, the BCD was ordered executed.

7.  He was discharged on 25 July 1990 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV, as a result of court-martial.  He completed 1 year, 7 months, and 21 days of creditable active service with 59 days of time lost.

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.

	a.  Paragraph 3-11 states that a Soldier will be given a BCD 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.


	b.  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.

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.

DISCUSSION AND CONCLUSIONS:

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

2.  Although the applicant contends that his misconduct was due to alcoholism and depression, no independent evidence shows he was diagnosed with alcohol abuse/dependency or depression prior to his discharge. There is no evidence he took steps to self-refer for alcohol abuse treatment while in the Army.

3.  The applicant’s contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

4.  Based on the seriousness of the misconduct for which he was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting his requested relief.

5.  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 therefore were appropriate.  As a result, clemency is not warranted in this case.


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)                                         AR20110011364



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ABCMR Record of Proceedings (cont)                                         AR20110011364



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