IN THE CASE OF:	  

		BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110018200 


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, in effect, an upgrade of his bad conduct discharge (BCD).

2.  The applicant states:

   a.  based on the passage of time, leniency, and his changed behavior, his BCD should be upgraded in order that he may have his life back;
   
   b.  his record prevents him from having a productive life; and
   
   c.  his past reflects his immaturity and unresolved issues.
   
3.  The applicant provides:

* Self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 5 character reference 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 enlisted in the Regular Army on 26 November 1979.  He was trained and served in military occupational specialties 76P (Material Control and Accounting Specialist).

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) confirms in Item 18 (Appointments & Reductions), his promotion to sergeant (SGT/E-5) on 1 October 1985, the highest rank/grade he attained while serving on active duty.  It also documents his reduction to private (PV1)/E-1 on 5 August 1988.

4.  Headquarters, Fort Carson and 4th Infantry Division (Mechanized), Fort Carson, Colorado, General Court Martial (GCM) Order Number 62, dated 7 September 1988, shows the applicant, pursuant to his pleas, was found guilty of the following two charges of violating the indicated Articles of the Uniform Code of Military Justice (UCMJ):

* Article 80 - attempting to steal lawful U. S. currency from Allstate Insurance company, in the amount of about $9,000.00
* Article 81 - conspiring with another Soldier to commit willful and wrongful destruction of an automobile valued at $9,000.00, his property and the property of General Motors Acceptance Corporation having a greater possession, by effecting the conspiracy by delivering the keys and automobile to the other Soldier who did steer the car over the cliff

5.  The resultant sentence imposed by the military judge was a BCD, confinement for 90 days, and reduction to PV1/E-1.  The Court-Martial Convening Authority approved the sentence and ordered that it be executed with the exception of the portion that provided for the BCD.

6.  On 31 May 1989, the U.S. Army Court of Military Review found the approved findings of guilty and the sentence correct in law and fact, and affirmed the findings of guilty and the sentence.

7.  On 7 September 1989, SPCM Order Number 43, issued by Headquarters, Fort Carson and 4th Infantry Division, Fort Carson, Colorado, directed that, Article 71c of the UCMJ having been complied with, the BCD portion of the sentence be duly executed.  On 19 September 1989, the applicant was discharged accordingly.

8.  The DD Form 214 issued to the applicant on the date of his discharge shows that he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), section IV, as a result of court-martial.  He completed a total of 9 years, 9 months, and 24 days of creditable active military service and accrued 90 days of time lost.

9.  The applicant provides six character reference statements from members of his family and his employer.  In essence, these statements say the applicant is:

* an outstanding businessman and entrepreneur
* a well respected man in the community
* a loyal member of his church who loves teaching and preaching the Word of God
* an excellent communicator, self starter, and motivator
* very goal oriented, a hard worker, 
* an admired friend and encourager of integrity and honesty
* a Pastor who has personally touched the lives of many

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

	a.  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.

	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.

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 applicant contends the passage of time, leniency, and his changed behavior forms the basis to upgrade his BCD.  His post service conduct and accomplishments are noted.

2.  The applicant committed misconduct for which a BCD was authorized punishment.  He was discharged after completion of the appellate process and only after his sentence was affirmed by the appropriate appellate court.  His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

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.  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)                                         AR20110018200





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ABCMR Record of Proceedings (cont)                                         AR20110018200



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