BOARD DATE:	 10 September 2013 

		DOCKET NUMBER:  AR20130002387 


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 his bad conduct discharge be upgraded to a general discharge.

2.  The applicant states he knows what he did was wrong.  He used bad judgment and he made a mistake, but his intentions were not to commit a crime or do anything illegal.  He was one of the first Soldiers in his unit to go to Desert Shield/Desert Storm to help set up operations.  He joined the Army right out of high school because he wanted to serve his country and do something productive and to make his family proud.

3.  He has had problems finding jobs because of the trouble he got into concerning his discharge.  He's had knee and foot surgery due to some injuries he received while in uniform and still has problems with both but cannot receive any assistance from the Department of Veterans Affairs because of the type of discharge that he has.  

4.  The applicant provides:

* three character references
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 25 April 1997 


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.  On 9 June 1982, he enlisted in the Regular Army.  He immediately reenlisted on: 

* 11 April 1986
* 1 August 1989
* 18 December 1992

3.  It appears that he served in the Gulf War from 1 September 1990 to 29 March 1991.  He was promoted to sergeant on 1 August 1992.

4.  On 3 May 1995, before a general court-martial he pled guilty and was found guilty of:

* making a false official statement
* larceny of $875.10 
* fraud against the U.S. Government in the amount of $875.10 by making  and presenting a false and fraudulent claim

5.  His sentence consisted of:

* reduction to private E-1
* a forfeiture of all pay and allowances
* paying a fine in the amount of $875.10
* confinement for 9 months
* issuance of a bad conduct discharge

6.  On 10 July 1995, the convening authority approved the sentence.

7.  On 25 October 1995, the findings of guilty and the sentence were affirmed by the United States Army Court of Criminal Appeals.

8.  On 21 March 1997, his bad conduct discharge was ordered executed and on 25 April 1997, he was issued a bad conduct discharge as a result of his court-martial conviction.  He had continuous honorable active service from 9 June 1982 to 17 December 1992.

9.  The applicant submitted three personal references from individuals who have known or worked with him.  They describe him as an honest, caring, hard working, and dependable person.  He was described as a fast learner, coming up to speed quickly on new areas of responsibility, and as a person who takes pride in his work.  The references also describe the applicant as a good friend who loved the military and proved it by putting his life on the line for his country during the Gulf War.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will 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.  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.  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.  

	d.  When a Soldier is accepted for immediate reenlistment he will be discharged and reenlisted on the day following discharge.  The service of a Soldier discharged under this provision will be characterized as honorable unless entry-level separation is required.

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 applicant had been promoted to sergeant, a position of authority and responsibility.  In promoting the applicant to sergeant, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As a sergeant, the applicant was in a position of trust and responsibility, and he was responsible for the welfare of those assigned under him.  By committing the offenses of which he was convicted he violated this special trust and confidence.  

2.  The evidence shows the applicant’s trial by general 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 regulation, 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.  

4.  The applicant's post-service achievements and conduct are noted.  However, good post-service conduct alone is usually not sufficiently mitigating to upgrade a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

5.  The applicant's entire record of service was considered.  He served in the Gulf War and he received honorable discharges for his previous periods of service.  However, his last period of service is clearly unsatisfactory.  Given the seriousness of the offenses for which he was convicted the available evidence is not sufficiently mitigating to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request at this time.  

6.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.



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)                                         AR20120002387



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ABCMR Record of Proceedings (cont)                                         AR20130002387



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