IN THE CASE OF: 

		BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120005482 


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 discharge.

2.  The applicant states he has changed since his court-martial.  He has settled down and he has a family.  He is currently enrolled in college; however, he cannot use his Montgomery GI Bill because of his discharge status.

3.  The applicant provides no 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.  The applicant enlisted in the Regular Army (RA) on 25 October 2000.  After completing training he was awarded military occupational specialty 63B (Light Wheeled Vehicle Mechanic).
3.  His record contains a DA Form 5112-R (Checklist for Pretrial Confinement), dated 15 May 2002, that shows he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on two occasions for:

* failing to report on 14 December 2001
* wrongfully using marijuana between on or about 17 December 2001 and
16 January 2002

4.  This same document shows that on 15 March 2002 charges were preferred against him for:

* one specification of conspiracy to commit larceny
* three specifications of making a false official statement
* one specification of larceny

5.  A DA Form 4430-R (Report of Result of Trial) shows that on 15 March 2002, the applicant was tried by general court-martial at Fort Sill, OK.  This document lists the following summary of offenses, pleas, and findings:

Charge
Art UCMJ
Spec
Brief Description of Offenses
Plea
Findings
I
81
The
Conspiracy to commit larceny on or about 20 February 2002

Guilty
Guilty
II
107
I


II


III
False Official Statement on or about 4 February 2002

False Official Statement on or about 1 March 2002

False Official Statement on or about 21 February 2002

Guilty


Not Guilty


Guilty
Guilty


Dismissed


Guilty
II
121
The
Larceny on or about
20 February 2002
Guilty
*
* Guilty, except the value "$8,820.00" substituting therefore the value $5,820.00."

6.  The court sentenced him to confinement for 19 months, forfeiture of all pay and allowances, and a bad conduct discharge.  He was placed in confinement on 15 May 2002 and his sentence was adjudged on 21 May 2002.

7.  On 15 August 2002, the convening authority approved the sentence and, except for the bad conduct discharge, ordered it executed.  The convening authority credited him with 6 days of confinement against the sentence to confinement.

8.  General Court-Martial Order Number 301, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, dated 29 May 2003, shows that Article 71(c) having been complied with, his sentence was finally affirmed and his bad conduct discharge ordered to be executed.

9.  On 20 August 2003, he was discharged in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, by reason of court-martial with a bad conduct discharge.  He completed 1 year, 6 months, and 14 days of creditable active service with 462 days of time lost due to confinement.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states in:

	a.  Paragraph 3-11, a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it can be duly executed.

	b.  Paragraph 3-7a, 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, 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.

11.  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 evidence of record shows that on15 March 2002 he was convicted by a general court-martial of one specification of conspiring to commit larceny, two specifications of making a false official statement, and one specification of larceny.  On 20 August 2003, he was discharged pursuant to the approved sentence of a general court-martial.

2.  His trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

3.  He provided no evidence to show his discharge was unjust or as a result of improper actions.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded.

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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is an insufficient evidentiary basis for upgrading his bad conduct discharge to an honorable or a general discharge.

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)                                         AR20120005482



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ABCMR Record of Proceedings (cont)                                         AR20120005482



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