IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20120000473 


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, in effect:

* an upgrade of his bad conduct discharge(BCD) to an honorable discharge
* that he be issued a monthly check for retirement at the rank he held before he was court-martialed
* a military identification [card]
* that his case be considered by the Staff Judge Advocate and the Armed Services Committee, and that Senator John McCain be present at the time

2.  The applicant states:

* he was court-martialed for bad checks his wife wrote and signed using his name
* it was an unjust punishment for the offense
* he was unaware of the checks until the businesses contacted his company
* he was not offered any other type of punishment and he was counseled twice
* he has numerous awards, certificates, and letters of commendation
* he served for 15 years and he was allowed to reenlist during Desert Storm
* he believes Army officials were “out to get him” so he could not “get out” under the early retirement program
* he believes the check writing incidents should have been handled in a civilian court since the checks were written off post

3.  The applicant provides an undated self-authored statement.

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 requests that that his case be considered by the Staff Judge Advocate and the Armed Services Committee, and that Senator John McCain be present at the time.  The function of the ABCMR is to correct errors or injustices contained in the official military records of Army service members and former service members.  The ABCMR has no authority over the Staff Judge Advocate, the Armed Forces Services Committee, or Senator John McCain.  Therefore, there will be no further discussion regarding these portions of his requests.  The ABCMR will consider all other requests based on the evidence submitted by the applicant and the evidence contained in his official record.

3.  The applicant enlisted in the Regular Army on 22 June 1976, in the pay grade of E-1.  He completed training as a motor transport operator.  He remained on active duty through continuous reenlistments and extensions.  He was promoted through the ranks to specialist five (E-5).

4.  The applicant accepted nonjudicial punishment (NJP) on 7 February 1977, for failure to go to his appointed place of duty.

5.  On 25 April 1978, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 1 February until 6 February 1978 and from 10 February until 27 February 1978.

6.  On 23 January 1984, the applicant received a Letter of Reprimand after he was convicted in the U.S. Magistrates Court of driving while intoxicated on 15 June 1983.

7.  The applicant accepted NJP on 29 May 1990, for communicating indecent language to another Soldier.

8.  General Court-Martial Order Number 26, issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, dated 19 June 1987, shows that pursuant to his plea, on 17 April 1992 he was convicted of seven specifications of uttering worthless checks.  He was sentenced to a reduction to pay grade E-1 and a BCD.

9.  The convening authority approved the sentence as adjudged and except for that portion providing for the BCD ordered the sentence executed.

10.  General Court-Martial Order Number 20, issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, dated 15 November 1994, noting that the sentence had been finally affirmed and complied with, ordered the BCD executed.

11.  On 9 December 1994, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of a duly reviewed and affirmed general court-martial conviction.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had another period of lost time from 12 October 1977 until 26 October 1977.  He had completed 18 years, 4 months, and 11 days of net active service this period.  He received a BCD.

12.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that 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 modify the severity of the punishment imposed.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-11 provides that 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 duly executed.

   b.  Paragraph 3-7a states 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.
   
   c.  Paragraph 3-7b states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.

2.  By law, any redress by this Board of the finality of a court-martial conviction, after 1949 under the Uniform Code of Military Justice, is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The available evidence shows he was convicted, pursuant to his pleas, by a general court-martial of seven specifications of uttering worthless checks.  He had NJP imposed against him for communicating indecent language towards another Soldier and he was convicted by a special court-martial for being AWOL.

4.  The applicant’s record documents no acts of valor or significant achievement warranting special recognition.  He did not serve honorably or under honorable conditions.  The BCD he received appropriately characterizes his service and is not overly severe considering the nature of his offense.  His misconduct throughout his military service does not warrant granting him the benefits of a military retirement check or identification card.

5.  In view of the foregoing, the applicant’s requests 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)                                         AR20120000473





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ABCMR Record of Proceedings (cont)                                         AR20120000473



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