IN THE CASE OF:	  

		BOARD DATE:	  24 July 2012

		DOCKET NUMBER:  AR20120000824 


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 an upgrade of his bad conduct discharge (BCD) to a general discharge (GD) under honorable conditions or a discharge under other than honorable conditions (UOTHC).

2.  He states he made restitution within 60 days of his court-martial.  He repaid his debt to the Army, the victim, and his country.  He has been a productive citizen since the time of his discharge and started his own business.

3.  He adds that it has been more than 24 years since the time of the offenses and would like his discharge upgraded.

4.  He did not provide any additional evidence.

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.  He enlisted in the Regular Army on 26 August 1985.  He served in military occupational specialty 76P (Materiel Control and Accounting Specialist) and the highest grade he attained while serving on active duty was specialist/E-4.

3.  His military personnel record does not show he earned any special recognition or that he had any significant accomplishments.

4.  On 3 February 1988, he was convicted by a general court-martial of the following offenses:

* two specifications of larceny between 1 April and 24 August 1987
* six specifications of forgery during the period 23 April through 4 August 1987

5.  His sentence included a BCD, confinement for 20 months, forfeiture of all pay and allowances, and reduction to the grade of private/E-1.  On 1 April 1988, his sentence of confinement was reduced to 18 months.  The remaining portions of the sentence were approved and ordered executed except for the portion pertaining to the BCD.

6.  On 9 June 1988, the U.S. Army Court of Military Review affirmed the findings and the sentence.

7.  U.S. Army Correctional Activity General Court-Martial Order Number 791, dated 15 November 1988, ordered his BCD executed.

8.  Accordingly, on 6 December 1988, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-11, as a result of a court-martial with a BCD.  He completed 2 years, 5 months, and 4 days of net active service.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 provided the policies and procedures for separating members with a dishonorable discharge or BCD.  It stipulated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  A GD was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  A discharge UOTHC was an administrative separation from the service under conditions other than honorable.  It may have been issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service.

10.  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.  The applicant's request for an upgrade of his BCD was carefully considered; however, in the absence of evidence of error or injustice, it does not show merit.

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

3.  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 applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

4.  The fact that it has been more than 24 years since his discharge and he has been a productive member of society does not negate the circumstances leading to his BCD.  The ABCMR does not upgrade discharges solely based on the passage of time or post-service conduct.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, he is not entitled to the requested relief.



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 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)                                         AR20120000824



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ABCMR Record of Proceedings (cont)                                         AR20120000824



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