BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110013058 


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 his bad conduct discharge (BCD) be upgraded to an honorable discharge and that all charges against him be dropped.

2.  The applicant states:

* he was never identified by the bank teller
* the finger prints were not his
* it was an unlawful conviction
* the handwriting was not his
* the bank teller said it was a white person

3.  The applicant provides 4 pages from a U.S. Army Criminal Investigation Command (USACIDC, also known as CID) report.

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.  His military records show he enlisted in the Regular Army on 
15 August 1986.  He completed training and was awarded military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade he attained while serving on active duty was specialist/E-4.

3.  On 3 May 1989, he was convicted by a general court-martial of one specification of stealing U.S. currency of a value more than $100.00.  The Court sentenced him to a BCD, confinement for 4 years, forfeiture of all pay and allowances, and reduction to private/E-1.  The convening authority approved his sentence on 30 August 1989.

4.  On 24 April 1990, the U.S. Army Court of Military Review Army affirmed the approved findings of guilty and the sentence.

5.  On 10 September 1990, the U.S. Military Appeals denied his petition to grant a review.

6.  General Court-Martial Order Number 314, issued by the U.S. Disciplinary Barracks, U.S. Army Combined Arms Command and Fort Leavenworth, Fort Leavenworth, KS, on 25 September 1991, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD executed. 

7.  He was discharged from active duty in pay grade E-1 on 22 November 1991 as a result of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, and issued a BCD.  He was credited with completing 2 years, 8 months, and 18 days of net active service, 103 days of lost time, and 829 days lost after normal expiration term of service.

8.  The applicant submitted four pages of a CID report as evidence that show:

* he was never identified by the bank teller or the camera
* the finger prints on the bank slip were not his
* the handwriting on the bank slip was not his 

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 states 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 sentence affirmed before it can be duly executed.

10.  Army Regulation 635-200, paragraph 3-7b, 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.

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.  The evidence of record shows the applicant was convicted by a general court-martial of one specification of stealing U.S. currency and one specification of false swearing.  He was discharged on 22 November 1991 pursuant to the approved sentence of a general court-martial.  His trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

2.  He provided no evidence to show his discharge is unjust or as a result of improper actions.  The applicant’s summary of the evidence does not accurately reflect the evidence contained in the documents he submitted, nor apparently introduced at his trial.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to an honorable discharge, or that the charges against him should be dropped.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.

3.  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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.  In view of the circumstances in this case, he is not entitled to 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)                                         AR20110013058



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ABCMR Record of Proceedings (cont)                                         AR20110013058



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