IN THE CASE OF:
BOARD DATE: 19 June 2012
DOCKET NUMBER: AR20110024426
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 bad conduct discharge (BCD) to a general discharge under honorable conditions.
2. The applicant states he served in the U.S. Army from May 1990 to June 1994 and overseas in Germany for 2 years as a tanker and fuel specialist.
a. He was reassigned to Fort Riley, Kansas. Shortly thereafter, his mother passed away and he began drinking a lot. He takes full responsibility for the actions that got him into trouble, but adds his offense of theft of property under $100.00 did not warrant a BCD.
b. He has been sober since being discharged from the Army and he has lived his life as a responsible citizen. He has a family, is a full-time construction worker, and volunteers to help build homes for low income families.
c. Upgrade of his discharge will allow him to return to work on Fort Riley, Kansas, where he worked for a year in logistics in support of the deployment/ redeployment of Soldiers.
3. The applicant provides no additional documentary evidence in support of his request.
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 31 August 1990 for a period of 4 years. He was awarded military occupational specialty 19K (M1 Armor Crewman).
3. The applicant served in Germany from 6 January 1991 to 15 July 1992.
4. He was convicted at two separate summary courts-martial (on 6 October and 2 November 1993).
5. A Municipal Court of Junction City, Kansas, Order of Commitment, shows, on 5 January 1994, the applicant pled guilty and was found guilty of theft of gas. He was fined $215.50 and sentenced to serve 60 days in jail.
6. In February 1994, the applicant was convicted at a special court-martial of:
* being absent from his unit without authority
* willfully disobeying the lawful order of a commissioned officer
* willfully disobeying the lawful order of a noncommissioned officer
* violation of a general regulation (driving with a suspended driver license on divers occasions)
* resisting apprehension
* drunken and reckless driving resulting in personal injury
* larceny of military property of a value of about $124 (two specifications)
7. On 28 February 1994, he was sentenced to forfeit $554.00 pay per month for four months, to be confined for four months, and to be discharged with a BCD.
8. On 8 June 1994, the convening authority approved the sentence, except the part of the sentence extending to a BCD, and ordered it executed.
9. On 3 August 1994, the United States Army Court of Military Review affirmed the findings and the sentence as approved by the convening authority.
10. Headquarters, 1st Infantry Division (Mechanized) and Fort Riley, Kansas, Special Court-Martial Order Number 2, dated 27 January 1995, confirmed the applicant's court-martial sentence was affirmed. The provisions of Article 71(c) having been complied with, the sentence of a BCD was ordered duly executed.
11. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD on 20 September 1995 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, as a result of court-martial.
a. He completed 4 years, 11 months, and 16 days of active service.
b. He had 36 days of time lost under Title 10, U.S. Code, section 972.
12. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 that his BCD should be upgraded because it was based on his offense of theft of property under $100.00 and since being discharged from the Army he has been sober and has lived his life as a responsible citizen.
2. Records fail to show the applicant's BCD was based on an offense of theft of property under $100.00. In addition, he had been found guilty of six other charges. Thus, the applicant's contention is not supported by the evidence of record.
3. The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the applicant's appeal.
4. The applicant's contentions regarding his post-service conduct was considered. However, good post-service conduct alone is not a basis for upgrading a discharge.
5. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20110024426
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ABCMR Record of Proceedings (cont) AR20110024426
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