IN THE CASE OF:	  

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110021979 


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 upgrade of his discharge. 

2.  The applicant states he received a bad conduct discharge because he was young and immature.  He did not realize the consequences of his actions.  He joined the military to learn life skills but made a mistake by not adopting them.  Now his employment prospects are hampered by his discharge.  He has had gainful employment and has included references to demonstrate the life changes he has made since leaving the military.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 13 June 1980
* a Community Based Reentry Initiative Certificate of Completion, dated
11 July 2007
* an undated Institute of Biblical Studies Life Skills Advanced Studies in the Biblical Approach to Alcohol and Drugs
* a Certificate of Achievement for performance in the Substance Abuse Treatment Program, dated 31 October 1997
* three training certificates in waste management, dated in April/May 2011


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 completed basic and military occupational specialty (MOS) training during one-site unit training as a member of the U.S. Army Reserve (USAR).  On 9 November 1988, he was discharged from the USAR and he enlisted in the Regular Army (RA) as a private (PV2)/E-2 on 10 November 1988.  He was 19 years, 10 months, and 17 days of age at the time of his enlistment in the RA.

3.  He was transferred to Germany on 9 December 1988.  On 31 December 1988, he was placed in pre-trial confinement pending trial by court-martial.  He was charged with:

* attempting to steal, by means of force, a money pouch of a value of about $50.00 and currency of a value of about $100.00, the property of a local national
* attempting to steal, by means of force, a money pouch of a value of about $50.00 and currency of a value of about $200.00, the property of a local national
* wrongfully possessing approximately 3 grams of marijuana in the hashish form on 31 December 1998
* false swearing on 31 December 1998

4.  On 17 March 1989, contrary to his pleas, a general court-martial found the applicant guilty of two specifications of attempted robbery, one specification of possession of marijuana, and one specification of false swearing.  He was sentenced to reduction to the rank/grade of private (PV1)/E-1, forfeiture of all pay and allowances, confinement for 6 months, and a dishonorable discharge.


5.  The convening authority approved the finding and sentence and, except for the discharge, ordered the sentence executed. 

6.  The U.S. Court of Military Review affirmed the findings and sentence.  On
4 June 1990, Article 71(c) of the Uniform Code of Military Justice having been complied with, the applicant's discharge was ordered executed.

7.  The applicant was subsequently discharged with a dishonorable discharge on 13 June 1990 under the provisions of Army Regulation 635-200, chapter 3, section IV, by reason of as a result of court-martial.

8.  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 was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  The conviction and dishonorable discharge (not a bad conduct discharge) were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  The applicant's submitted documents that indicate he is trying to get a handle on his substance abuse issues.  Although it appears he has learned from his mistakes, there is no evidence of any outstanding community service that would begin to compensate for his egregious behavior while in the Service.

3.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

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)                                         AR20110021979



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110021979



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1