IN THE CASE OF:
BOARD DATE: 17 July 2012
DOCKET NUMBER: AR20120000596
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 dishonorable discharge (DD) be upgraded to a general or honorable discharge.
2. The applicant states that he has not been in any trouble since his discharge, he has changed his life, and he has become a Christian. He goes on to state that he has not been able to get a good job or apply for veterans benefits.
3. The applicant provides no additional documents with his application.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records 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. On 1 December 1987, the applicant enlisted in the Regular Army for a period of 4 years and training as a cannon crewman. He completed his training at Fort Sill, Oklahoma and was transferred to Germany. He completed a 2-year tour in Germany and was transferred to Fort Stewart, Georgia.
3. On 29 January 1992, he was convicted pursuant to his pleas by a general court-martial of conspiracy to sell stolen property, being absent without leave (AWOL) from 17 December 1990 until he was apprehended on 13 December 1991, four specifications of selling government property, and the wrongful use of marijuana. He was sentenced to confinement for 24 months, a forfeiture of $500.00 pay for 10 months, and a DD.
4. On 22 July 1992, the U.S. Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.
5. On 26 May 1994, he was discharged pursuant to a duly-affirmed court-martial conviction. He had served 3 years, 8 months, and 20 days of active service and he had 1,008 days of lost time due to being AWOL and in confinement.
6. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for the separation of enlisted personnel.
a. Paragraph 3-7a provides 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.
b. Paragraph 3-7b provides 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
c. 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. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with the applicable law and regulation and the discharge appropriately characterizes the misconduct for which the applicant was convicted. Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.
2. The applicants contentions have been considered. However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his offenses.
3. Accordingly, his sentence was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.
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) AR20120000596
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20120000596
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2011 | 20110006489
The applicant requests upgrade of his bad conduct discharge to a general discharge and change of his reentry eligibility (RE) code to one that will allow him to reenter military service. On 10 April 2009, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, as a result of a court-martial with a bad conduct discharge. Therefore, the applicant's record of service is insufficiently meritorious...
ARMY | BCMR | CY2009 | 20090004030
The applicant requests that his bad conduct discharge be upgraded to under other than honorable conditions or general under honorable conditions. He was sentenced to be reduced to pay grade E-1, to pay a fine of $3,692.00, to be confined for 2 years, and to be discharged from the service with a bad conduct discharge. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.
ARMY | BCMR | CY2009 | 20090002339
IN THE CASE OF: BOARD DATE: 3 September 2009 DOCKET NUMBER: AR20090002339 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. He was AWOL for 5 days after only 20 months of service. __________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.
ARMY | BCMR | CY2008 | 20080014943
Headquarters, U.S. Army Garrison, Fort Dix, New Jersey, General Court-Martial Orders Number 50, dated 15 August 1995, show that the sentence to a bad conduct discharge, adjudged on 24 August 1993, has been finally affirmed and that the bad conduct discharge would be executed. The evidence of record shows the applicant was a senior noncommissioned officer and had completed nearly 15 years of service at the time of his misconduct. Conviction and discharge were effected in accordance with...
ARMY | BCMR | CY2008 | 20080014423
He also states, in effect, that he still does not have a discharge document with his characterization of service or a true DD Form 214 (Certificate of Release or Discharge from Active Duty) for a benefit determination. After a thorough review of the available records, there was no cause for clemency and an insufficient basis upon which to base an upgrade of the applicants bad conduct discharge to an honorable or general discharge. Therefore, the Board determined that the overall merits of...
ARMY | BCMR | CY2011 | 20110001198
Application for correction of military records (with supporting documents provided, if any). On an unknown date, the applicant submitted a petition to the U.S. Court of Military Appeals for a grant of review. ___________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.
ARMY | BCMR | CY2014 | 20140013600
IN THE CASE OF: BOARD DATE: 26 March 2015 DOCKET NUMBER: AR20140013600 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. On 5 September 1977, he was ordered to active duty for a period of 19 months and 7 days and was transferred to Frankfurt, Germany on 26 September 1977 for assignment to a Division Support Command. Accordingly, his sentence was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of...
ARMY | BCMR | CY2013 | 20130019253
The applicant states that his court-martial order directed that all rights, privileges and property be restored to him after his confinement and he now desires an honorable discharge. On 22 December 1993, General Court-Martial Order Number 451 issued by the United States Disciplinary Barracks at Fort Leavenworth, Kansas set aside the finding of guilty of specification I of Charge II (failure to go to place of duty) and directed that all rights, privileges and property of which the applicant...
ARMY | BCMR | CY2014 | 20140000891
Accordingly, on 18 May 1984, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 3, as a result of a court-martial with a bad conduct discharge. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. As a result, clemency is not warranted in this case.
ARMY | BCMR | CY2012 | 20120008953
On 23 March 1992, his sentence was approved and, except for the part of the sentence extending to the BCD, was directed to be executed. 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. The record shows that both the U.S. Army Court of Military Review and the U.S. Court of Military Appeals affirmed his sentence and upon completion of the appeals process his BCD ordered executed.