IN THE CASE OF:	  

		BOARD DATE:	 12 September 2013

		DOCKET NUMBER:  AR20130001433 


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 bad conduct discharge to an honorable and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect his service in Kuwait.

2.  The applicant states:

* he agrees that he should have been punished but not for the rest of his life
* his discharge was inequitable because it was based on one isolated incident with no other adverse action
* he is very sorry for taking a radio from the post exchange (PX)
* he loves his country
* sometimes it is not what you do in life but what you learn from your mistakes
* since his separation from the Army, he has been living a life free of crime and drugs
* he helps people in need and teaches others not to make the mistakes he made
* he has three children and he is also a youth football coach
* he served in Kuwait from 1 August 1996 to 1 January 1997

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 on 16 February 1996.

3.  The Defense Finance and Accounting Service (DFAS) confirmed he received hostile fire/imminent danger pay (HF/IDP) and combat zone tax exclusion (CZTE) for service in Kuwait from 10 August - 12 December 1996 (4 months and 3 days).

4.  On 15 January 1998, he was found guilty by a general court-martial of:

	a.  conspiring to commit larceny of Army and Air Force Exchange Service (AAFES) property of a value of over $100.00;

	b.  stealing property of a value of over $100.00, the property of AAFES;

	c.  unlawfully striking an AAFES security officer in the shoulder by hitting him with his arm; and

	d.  assaulting a military policeman by hitting his shoulder with his forearm and kneeing him in the leg.

5.  He was sentenced to reduction to private (PV1)/E-1, forfeiture of pay for
6 months, confinement for 6 months, and a bad conduct discharge.  The Court-
Martial Convening Authority approved the sentence on 23 June 1998.  Except for the bad conduct discharge, the remaining sentence was ordered executed.  The applicant was credited with 91 days of confinement against the sentence to confinement.

6.  On 9 October 1998, the U.S. Army Court of Criminal Appeals affirmed the findings and the sentence.

7.  On 2 June 2000, the sentence having been affirmed and the provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

8.  Accordingly, he was discharged on 21 September 2000 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial with a bad conduct discharge.

9.  His DD Form 214 shows in:

	a.  block 12f (Foreign Service) the entry "000  00  00" indicating no foreign service;

	b.  block 18 (Remarks) no entry for any deployments.

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

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

	b.  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.

	c.  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.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It provides standardized policy for the preparation of the DD Form 214 and states for:

	a.  block 12f, enter the total amount of foreign service completed during the period covered by the DD Form 214;
	b.  block 18, for an active duty Soldier deployed to a foreign country with his or her unit during their continuous period of active service, enter the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)."

12.  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 contends his bad conduct discharge should be upgraded to honorable and that his DD Form 214 should be corrected to reflect his service in Kuwait from 1 August 1996 to 1 January 1997.

2.  DFAS records confirmed he received HF/IDP and CZTE for service in Kuwait from 10 August to 12 December 1996.  Therefore, his DD Form 214 should be corrected to show 4 months and 3 days of foreign service in block 12f and to document his deployment to Kuwait in block 18.

3.  Regarding an upgrade of his bad conduct discharge, the trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which he was convicted.

4.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, there is no basis for granting the applicant an honorable or a general discharge.

5.  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.  As a result, clemency is not warranted in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from block 12f of his DD Form 214 the current entry and replacing it with the entry "0000  04  03" and

	b.  adding to block 18 of his DD Form 214 the entry "SERVICE IN KUWAIT FROM 19960810 - 19961212."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to honorable and to correct his DD Form 214 to show he served in Kuwait from 
1 August 1996 to 1 January 1997.



      ____________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)                                         AR20130001433



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ABCMR Record of Proceedings (cont)                                         AR20130001433



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