IN THE CASE OF:	  

		BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20130003234 


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 clemency and an upgrade of his bad conduct discharge (BCD).

2.  He states his BCD is too harsh.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), General Court-Martial Order Number 37, Order 288-1, and U.S. Army Court of Criminal Appeals - Notice of Court-Martial Order Correction.

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 12 November 1993.

3.  He received a letter of reprimand on 19 September 1997 for driving under the influence (DUI).  

4.  On 26 October 2001, he was convicted by a general court-martial of the following offenses:

   a.  wrongfully asking from a specialist (SPC), the sum of $50.00, with intent to have his actions influenced with respect to an official matter in which the United States was and is interested by letting the SPC clear Central Issue Facility (CIF) without accounting for all personal property and equipment he had been issued  and was responsible for returning.  
   
   b.  stealing military property of the Fort Myer CIF, U.S. Army, of a value of about $1,675.37.
   
   c.  stealing by false pretenses $100.00, the property of Full Metal Jacket pawn shop in Alexandria, VA.
   
   d.  stealing by false pretenses $300.00, the property of Full Metal Jacket pawn shop in Alexandria, VA.
   
   e.  selling to Full Metal Jacket pawn shop, without proper authority, three ballistic vests, of some value more than $100.00, the military property of the United States.  
   
   f.  selling to Full Metal Jacket pawn shop, without proper authority, four Goretex parkas, of some value more than $100.00, the military property of the United States.
   
   g.  with intent to deceive, making a false official statement to a Special Agent.
   
   h.  with intent to deceive, making a false official statement to a Special Agent.

5.  He was sentenced to be confined for 22 months, to be reduced to the grade of private, E-1, and to be discharged from the service with a BCD.

6.  On 1 March 2002, the sentence was approved and except for that part of the sentence extending to a BCD, was executed.

7.  On 2 May 2003, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  
8.  On 2 May 2003, the U.S. Army Court of Criminal Appeals corrected General Court-Martial Order Number 2, Department of the Army, U.S. Army Military District of Washington, Washington, D.C. 20319, dated 1 March 2002 by:

	a.  inserting in line one of Specification 1 of Charge II after the date "1 May 2000" the words and figures "and on or about 30 August 2000."

	b.  deleting in line one of Specification 2 of Charge II the figures "$300" and inserting the figures "$325."

	c.  deleting in line two of Specification 2 of Charge II the word "shope" and inserting the word "shop."

	d.  deleting in line three of Specification 1 of Charge IV the word "fo" and inserting the word "of."

9.  On 30 May 2003, the BCD was ordered to be executed.  He was discharged on 22 August 2003 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, section IV, by reason of court-martial, other with issuance of a BCD.  He completed 7 years, 11 months, and 5 days of creditable active service with approximately 665 days of lost time.

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-10 of this regulation states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

11.  Army Regulation 635-200, 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.  

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 BCD is too harsh.  However his trial by court-martial was warranted by the gravity of the offenses charged and the conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  His service record shows he received a letter of reprimand for DUI and a conviction by a general court-martial.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an honorable or a general under honorable conditions discharge.

3.  The evidence of record does not indicate the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for clemency or for an upgrade of his BCD.  

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)                                         AR20130003234





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ABCMR Record of Proceedings (cont)                                         AR20130003234



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