IN THE CASE OF:	  

		BOARD DATE:  31 January 2012

		DOCKET NUMBER:  AR20110013073 


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 be upgraded to an honorable discharge.

2.  The applicant states:

* he has paid his dues and wants a second chance to show the military that he is a better man with responsibilities and has grown since discharge
* he is 32 years old with a son and another on the way
* he has matured since joining the Army
* he would like an opportunity to prove himself and retire from the services
* everyone deserves a second chance
* he enjoyed the Army but was not mentally ready for the Army
* he wants his son to look at him as a Soldier and seeing him having a career he enjoyed
* he wants the Board to make an exception in his case and allow him to rejoin the military

3.  The applicant provides self-authored statements.

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 complete military records or record of trial are not available for review.  However, there were sufficient documents in the interactive Personnel Electronic Records Management System (iPERMS) record to conduct a fair and impartial review of this case.

3.  The applicant enlisted in the Regular Army on 26 January 1998.  He completed training and was awarded military occupational specialty 92G (Food Service Specialist).  The highest rank/grade he attained while on active duty was private/E-2.

4.  Special Court-Martial Order Number 5, Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, Fort Drum, NY, dated 25 June 1999, shows the following charges, pleas, and findings:

	a.  Charge I.  Article 81.  Plea:  Guilty.  Finding:  Guilty.

Specification:  Conspire to bring aliens into the U.S. at a place other than a designated port of entry on or about 23 August 1998.  Plea:  Guilty.  Finding:  Guilty

	b.  Charge II.  Article 85.  Plea:  Not Guilty Article 85, but Guilty of Article 86, a lesser included offense.  Finding:  Not Guilty of Article 85, but Guilty of Article 86, a lesser included offense.

Specification:  Without authority and with intent to remain away permanently, absent himself from his unit on or about 3 January 1999 until on or about 20 January 1999.  Plea:  Not Guilty of desertion, a violation of Article 85, but Guilty of being absent without authority from his unit, a violation of Article 86.  Finding:  Not Guilty of desertion, a violation of Article 85, but Guilty of being absent from his unit, a violation of Article 86.


	c.  Charge III.  Article 121.  Plea:  Guilty.  Finding:  Guilty.

Specification:  Steal a vehicle on or about 2 January 1999.  Plea:  Not Guilty of larceny, but Guilty of wrongful appropriation, a lesser included offense.   Finding:  Not Guilty of larceny, but Guilty of wrongful appropriation, a lesser included offense.

	d.	Charge IV.  Article 134.  Plea:  Guilty.  Finding:  Guilty.

Specification:  Did bring aliens into the U.S. at a place other than a designated port of entry on or about 23 August 1998.  Plea:  Guilty.  Finding:  Guilty.

5.  The applicant was sentenced to a bad conduct discharge, reduction to the grade of E-1, and confinement for 75 days.  His sentence was adjudged on 6 February 1999.  He was credited with 17 days confinement against his sentence to confinement.

6.  Special Court-Martial Order Number 100, Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, dated 6 September 2000, shows the applicant's sentence of reduction to the grade of private/E-1, confinement for 75 days, and a bad conduct discharge, adjudged on 6 February 1999, as promulgated in Corrected Special Court-Martial Order Number 5, Headquarters, 10th Mountain Division (Light Infantry), Fort Drum, NY, dated 25 June 1999, was affirmed.  He was credited 17 days of confinement against the sentence of confinement.  Special Court-Martial Order Number 100 directed execution of his bad conduct discharge.

7.  On 7 December 2000, the applicant was issued a bad conduct discharge.  He completed 2 years, 8 months, and 17 days of creditable active service.

8.  On 13 May 2011, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

9.  Army Regulation 635-200 provides guidance on characterization of service.

	a.  Paragraph 3-7a states that an Honorable Discharge (HD) 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.
	b.  Paragraph 3-7b states that a General Discharge (GD) 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 HD.

10.  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 change a discharge due to matters which should have been raised in the appellate process, 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 request was carefully considered and determined to lack merit.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  Therefore, the requested relief is not warranted.

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)                                         AR20110013073



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ABCMR Record of Proceedings (cont)                                         AR20110013073



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