BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110014641 


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 (BCD) be upgraded to an honorable discharge.

2.  The applicant states that his discharge should be upgraded because he has stayed out of trouble and has become a model citizen since his discharge.

3.  The applicant provides a one-page letter explaining his application and three third party letters of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army in Raleigh, North Carolina on 18 January 1989 for a period of 4 years and training as a cannon crewman.  He completed his one-station unit training (OSUT) at Fort Sill, Oklahoma and was transferred to Germany on 15 May 1989.  He was advanced to the pay grade of E-4 on 1 August 1990.

2.  On 25 October 1991, the applicant was convicted pursuant to his pleas by a general court-martial of conspiracy to commit robbery of two German Nationals, of operating a vehicle in a reckless manner, of wrongfully appropriating a Mercedes Benz taxicab belong to a German National, of putting a German National in fear and stealing against his will a leather purse containing approximately 300 Deutches Marks, and leaving the scene of an accident without making his identity known.  He was sentenced to a reduction to the pay grade of E-1, a forfeiture of $300.00 pay per month for 42 months, confinement for 42 months and to be discharged from the service with a BCD.  However, the convening authority directed that the execution of that part of the sentence adjudging confinement in excess of 40 months and forfeitures in excess of $300.00 pay per month for 24 months was suspended for 1 years unless sooner vacated.

3.  On 10 November 1992 the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

4.  On 18 February 1993 the United States Court of Military Appeals affirmed the decision of the United States Army Court of Military Review.

5.  General Court-Martial Order Number  247 published by the United States Disciplinary Barracks Combined Arms Command and Fort Leavenworth directed that the BCD be  executed when the punishment had been complied with.

6.  On 18 June 1993, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 2 years, 9 months, and 7 days of total active service with approximately 600 days of lost time due to confinement. 

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a provides that 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.

8.  Army Regulation 635-200, 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.  Trial by court-martial was warranted by the gravity of the offenses charged.  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 type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

2.  The applicant’s contentions and supporting documents have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense.

3.  Accordingly, his punishment was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.  

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.  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)                                         AR20110014641





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110014641



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1