BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110018431 


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 an upgrade of his bad conduct discharge to an honorable discharge.

2.  The applicant states he has an honorable discharge from 6 June 1985 when he reenlisted.

3.  The applicant provides no additional evidence in support of his application.

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.  He enlisted in the Regular Army on 15 September 1982 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).

3.  He was promoted to specialist five/pay grade E-5 on 1 December 1984.

4.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK Orders 168-8, dated 17 June 1985, show he was discharged on 30 June 1985 to immediately reenlist on 1 July 1985.  He reenlisted on 1 July 1985 in pay grade E-5 for a period of 3 years.

5.  On 8 December 1986, he pled guilty and was found guilty before a general court-martial of wrongfully appropriating cash, food, and beverages of an amount in excess of $100.00, the property of the U.S. Government, between 1 May 1985 and 16 June 1986.

6.  His sentence consisted of:

* reduction to private/pay grade E-1
* forfeiture of $200.00 per month for 6 months
* confinement for 3 months
* issuance of a bad conduct discharge

7.  On 8 January 1987, the convening authority approved the sentence and, except for that part of the sentence extending to a bad conduct discharge, ordered the sentence executed.

8.  His sentence to a bad conduct discharge was affirmed and ordered executed.

9.  On 12 August 1987, he was discharged with a bad conduct discharge as a result of his court-martial conviction.  He completed 4 years, 8 months, and 24 days of net active service.  He had 64 days of lost time.

10.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3, section IV, established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could have been issued only when the reason for the Soldier's separation specifically allowed such characterization.

	d.  When a Soldier was accepted for immediate reenlistment he was discharged and reenlisted on the day following discharge.  The regulation further states that such service would be characterized as honorable unless entry-level separation is required.

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.  He was accepted for immediate reenlistment and discharged on 30 June 1985 and reenlisted on the following day.  Therefore, his service from 16 July 1982 to 30 June 1985 is characterized as honorable service.

2.  The evidence shows the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the 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.

4.  He had been promoted to specialist five, a position of authority and responsibility.  In promoting him to specialist five, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of him.  As a specialist five, he was in a position of trust and responsibility and he was responsible for the welfare of those assigned under him.  When he became involved with the wrongful appropriation of government property, he not only broke the law, he also violated this special trust and confidence.  Therefore, in view of the applicant's abuse of a position of trust, his service was unsatisfactory.

5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to an honorable discharge or a general discharge under honorable conditions.

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 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)                                         AR20110018431



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ABCMR Record of Proceedings (cont)                                         AR20110018431



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