IN THE CASE OF:
BOARD DATE: 12 July 2012
DOCKET NUMBER: AR20110023736
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 a discharge upgrade.
2. The applicant states he made a mistake and he's sorry.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 applicants 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 applicants 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 U.S. Army Reserve Delayed Entry Program (DEP) for 6 years on 31 July 1980. On 5 August 1980, he was discharged from the DEP and enlisted in the Regular Army for 3 years on 6 August 1980. On 21 July 1983, he reenlisted for 6 years.
3. On 2 April 1985, the applicant was convicted by a general court-martial (GCM) of:
* larceny on 18 July 1984
* uttering worthless checks on multiple occasions
* making a false claim on 5 July 1984
* making a false statement on 18 July 1984
4. As punishment, he received a bad conduct discharge (BCD), 18 months' confinement, reduction to E-1, and a total forfeiture of all pay and allowances. He served his sentence to confinement at the U.S. Army Correctional Activity (USACA), Fort Riley, Kansas.
5. While confined at USACA, the applicant was convicted by a summary court-martial (SCM) on 10 December 1985 of forgery, larceny, and wrongful appropriation.
6. Upon service of his sentence to confinement, the applicant was released from USACA on excess leave on 2 July 1986 to await appellate review of his GCM conviction. On 21 April 1986, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.
7. The applicant was discharged with a BCD on 15 April 1987.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 provides a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
9. Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:
a. Paragraph 3-7a states that an Honorable Discharge (HD) is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the members service
generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
b. Paragraph 3-7b states that a General Discharge (GD) 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 HD.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for a discharge upgrade was carefully considered.
2. The applicant was convicted by a GCM of serious offenses under the UCMJ. His conviction was reviewed by the United States Army Court of Military Review and both the conviction and sentence were affirmed.
3. 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.
4. There is insufficient evidence to support a grant of clemency in the applicant's 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) AR20110023617
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20110023736
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