BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20120000379 


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 that his bad conduct discharge be upgraded to an honorable or general discharge.

2.  The applicant states his discharge should be upgraded based on his performance and service to his country.

3.  The applicant provides copies of:

* His DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Memorandum (first page only) petitioning for clemency, dated
16 November 1992
* Letter of Commendation, dated 1 March 1991
* Certificate for service in Operation Desert Storm, dated 7 June 1991
* Certificate of Appreciation for Desert Shield/Desert Storm, undated
* Certificate of Achievement, dated 29 April 1990
* Certificate of membership in the 100 Mile Club, dated 15 January 1992
* Individual Training Record, dated 26 October 1989

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.  On 30 August 1989, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 31L (Wire Systems Installer).  He was subsequently assigned to the 67th Signal Battalion, Fort Gordon, Georgia.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) indicates he was:

	a.  Barred from reenlistment on 1 October 1991 and the bar was lifted in March 1992; and

	b.  Advanced to specialist four, pay grade E-4 on 1 April 1992.

4.  General Court-Martial Order Number 7, Headquarters, U.S. Army Signal Center, Fort Gordon, Georgia, dated 18 November 1992, shows the applicant was convicted of violating:

	a.  Article 92 (two specifications) of the Uniform Code of Military Justice (UCMJ) for wrongful possession of ammunition and a .45 caliber pistol.  He was also convicted of wrongful discharge of the pistol; and

	b.  Article 111 for driving while drunk.

5.  The applicant's sentence included:

* confinement for 6 months
* reduction to pay grade E-1
* a bad conduct discharge

6.  On 18 November, 1992, the convening authority approved the sentence, except for the part extending to a bad conduct discharge, and ordered the sentence to be executed.

7.  General Court-Martial Order Number 121, U.S. Army Armor Center and Fort Knox, Kentucky, dated 22 September 1993, announced the sentence had been affirmed.  Article 71(c) having been complied with, and the sentence to confinement having been completed, that portion of the sentence pertaining to a bad conduct discharge was to be executed.

8.  The applicant's DD Form 214 shows he was discharged from the Regular Army on 29 October 1993 under the provisions of Army Regulation 635-200, chapter 3, due to court-martial, with a bad conduct characterization of service.

9.  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.

10.  The documents provided by the applicant show that:

	a.  His defense counsel petitioned the convening authority in 1992 for clemency citing the applicant's good and honorable service for more than 
3 years, to include his service during Desert Shield/Storm.

	b.  The quality of his service had been recognized as evidenced by the certificates of achievement, appreciation, and a letter of commendation.

	c.  He had achieved a "go" in every portion of his basic combat and advanced individual training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to honorable or to general discharge based on his performance and service to his country.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the final discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's records show that in 1991 he was barred from reenlistment but he was given a chance when the bar was lifted in 1992.  His subsequent misconduct resulted in his court-martial action.  These events clearly out-weigh the applicant's earlier "good service."  Accordingly, the overall quality of his service does not support any mitigation of his characterization of service.

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 seriousness of the applicant's misconduct, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the above, the applicant’s request should be denied.

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)                                         AR20120000379



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ABCMR Record of Proceedings (cont)                                         AR20120000379



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