IN THE CASE OF:	  

		BOARD DATE:  10 April 2012

		DOCKET NUMBER:  AR20110019751 


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 or a general discharge.

2.  The applicant states:

* He only had one incident during his whole career
* The discharge was severely harsh for his time and accomplishments
* He would like to enjoy the benefits that all veterans should have for protecting our country
* His service was outstanding prior to his court-martial
* It has been over 10 years now
* The incident in question was blown out of control by Korean nationals

3.  The applicant provides a letter, dated 4 March 1992, from his defense counsel at the time in question.

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 17 September 1985 for a period of 3 years and 14 weeks.  He completed his training and he was awarded military occupational specialty 11B (infantryman).  On 18 October 1988, he was honorably discharged for immediate reenlistment.  He reenlisted on 19 October 1988 for a period of 3 years.  He arrived in Korea on 19 February 1990.   

3.  On 10 December 1991, he was convicted by a special court-martial of larceny ($146.00 U.S. currency and 11,000 Korean Won).  He was sentenced to be reduced to E-1, a forfeiture of $502.00 pay for 3 months, to be confined for
3 months, and to be discharged from the service with a bad conduct discharge. On 9 March 1992, the convening authority approved the sentence.

4.  The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence on 29 October 1992.  

5.  On 5 March 1993, the convening authority ordered the bad conduct discharge to be executed.

6.  He departed Korea on 16 March 1992.

7.  On 15 April 1993, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial with a bad conduct discharge.  He had served a total of 7 years, 3 months, and 21 days of creditable active service with 99 days of time lost.  His awards included the Army Commendation Medal, Army Good Conduct Medal, and Army Achievement Medal.

8.  He provided a letter from his defense counsel at the time in question which states:

* The applicant had a distinguished Army career that is evidenced by numerous awards
* He is an individual of exceptional integrity
* His conviction was based on facts that occurred in a matter of seconds
* He was shopping in town in Korea and noticed a wad of money on a desk and he picked the money up and counted it and as he started to put the money down on the desk the store owner grabbed him

* He tried to cooperate with the store owner and he was physically attacked
* A riot ensued and at least 30 Korean nationals tried to assault the applicant
* He knows he should never have picked up another individual's property
* Although he received a punitive discharge for his crime, five character witnesses testified on his behalf   

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

10.  Army Regulation 635-200, 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.

11.  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.

12.  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 his discharge should be upgraded because it has been over 10 years now.  However, the passage of time is normally not a basis for upgrading a discharge.

2.  His contentions and the defense counsel's letter were carefully considered.  However, his record of service during his last enlistment included one special court-martial conviction for larceny.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

3.  Trial by court-martial was warranted by the gravity of the offense charged.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

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)                                         AR20110019751



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ABCMR Record of Proceedings (cont)                                         AR20110019751



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