IN THE CASE OF:	  

		BOARD DATE:  8 October 2013

		DOCKET NUMBER:  AR20130002063 


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 (BCD) to a general, under honorable conditions discharge.

2.  The applicant states he was court-martialed on 7 December 1992 for misappropriating military weapons (bayonets), misappropriating a sensitive item (a pair of night vision goggles), and falsifying military documents.

   a.  He was a young married Soldier with two children and he had a large amount of debt.  He committed the offenses in order to feed his family and he takes full responsibility for his actions.

   b.  He has worked hard to turn his life around over the past 20 years and he had completed programs of instruction in transitioning from a pattern of criminal thinking and behavior, substance abuse, life skills development, personal growth and achievement, vocational training, and psycho-educational awareness.  He has also worked in the areas of preventive maintenance of commercial equipment, desk and tabletop manufacture, laundry maintenance, kitchen maintenance, special maintenance projects, food service management, and furniture design.

3.  The applicant provides copies of three letters, four book title pages, and
18 certificates spanning the period from 12 July 1994 to 18 December 2013.


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 15 March 1989 for a period of
4 years.  He was awarded military occupational specialty 19D (Cavalry Scout).

3.  In December 1992, the applicant was convicted at a general court-martial of:

* wrongfully appropriating property of the U.S. Government
(2 specifications)
* making a false official statement

4.  On 29 January 1993, the General Court-Martial Convening Authority (GCMCA) sentenced the applicant to be discharged with a BCD, reduction to the grade of private (E-1), forfeiture of $100.00 pay per month for 7 months, and confinement for 57 days (suspended for 1 year at which time, unless the suspension was sooner vacated, the suspended part of the sentence would be remitted without further action).

5.  The GCMCA also directed that the applicant be placed on involuntary excess leave, effective 1 February 1993, for an indefinite period.

6.  Fort Belvoir Resident Agency, Third Region, U.S. Army Criminal Investigation Command, Fort Belvoir, VA, memorandum, dated 4 October 1993, subject:  Criminal Investigation Division Report of Investigation - Final, shows that an investigation by the Fairfax County Police Department established probable cause to believe the applicant committed the offenses of Rape, Abduction, Forcible Sodomy, Assault, and Robbery on 28 - 29 August 1993.

7.  Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, General Court-Martial Order Number 39, dated 11 April 1994, confirmed the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, the sentence of a BCD was ordered duly executed.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD on 2 May 1994.  He had completed 4 years, 11 months, and 24 days of net active service this period.

9.  In support of his request the applicant provides the following documents:

   a.  A letter from the Clinical Supervisor, Adult Detention Center, Forensic Program, to the Honorable Richard J. J---, Fairfax County Circuit Court, Fairfax, VA, dated 12 July 1994.  It shows the applicant was scheduled to come before the judge for consideration.  The Clinical Supervisor attested to the applicant's involvement as group leader and commitment to the Transition Block Group that examined patterns of criminal thinking and subsequent behavior in personality construct.

   b.  A letter from an official of the Augusta Correctional Center, Craigsville, VA, dated 12 December 2002, to a prospective employer of the applicant.  The official provides his highest recommendation for employment of the applicant with laundry maintenance or any maintenance crew.

   c.  Documents, spanning the period from 13 July 1994 to 18 December 2013, that show he completed the following training:

* Substance Abuse Education
* Self-Awareness
* Wake-Up Therapeutic Classes
* Data Entry Clerk
* Anger Management Program
* Heating, Ventilation, and Air Conditioning
* Computer Operator courses
* ServSafe Certification
* Kettle Operation and Maintenance
* Grill Maintenance and Operation
* Progressive Cooking and Cleaning
* Proper Handling of Food and Proper Use of Tools
* Reading the Recipe Book
* Recipe Enhancement
* Equipment Training
* Food Handlers Course
* Safe Food Handlers Course
* Advanced Food Handlers Course
* Preventing Recidivism by Educating for Parole Success

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 3, 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.

   b.  Chapter 3, paragraph 3-10, provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial after completion of the appellate review and after such affirmed sentence has been ordered duly executed.

11.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 that his BCD should be upgraded to a general, under honorable conditions discharge because he committed the offenses in order to feed his family, he takes full responsibility for his actions, and he has worked hard to turn his life around over the past 20 years.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

3.  By law, any redress by this Board of the finality of a court-martial conviction 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.

4.  After a thorough and comprehensive review of the applicant's military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency would not be appropriate in this case.  In addition, the applicant's contentions regarding his financial obligations were matters for consideration in his court-martial and/or the appeals process of his case.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

6.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, his post-service conduct is insufficient as a basis for upgrading his 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)                                         AR20130002063



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ABCMR Record of Proceedings (cont)                                         AR20130002063



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