IN THE CASE OF:	  

		BOARD DATE:	  22 October 2013

		DOCKET NUMBER:  AR20130004171 


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 an upgrade of his bad conduct discharge.

2.  The applicant states the convening judge recommended that his discharge be reviewed after an appropriate amount of time and upgraded if after further review there were no additional issues.  It has been 23 years since he was discharged and he has carried himself with the utmost respect for his family and community. He has had no issues with law enforcement, except for minor driving infractions. The review has never happened and this has created a hardship for him as he plans on running for local office and going to college.  His current record is unjust.

3.  The applicant did not provide any 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's records show he enlisted in the Regular Army on 23 July 1987 and held military occupational specialty 76C (Equipment Records and Parts Specialist). 

3.  He was awarded or authorized the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship Qualification Badge with Grenade Bar. 

4.  On 6 January 1989, he departed his Fort Riley, KS unit in an absent without leave (AWOL) status but he returned to military control on 10 January 1989. 

5.  On 7 April 1989, he again departed his unit in an AWOL status but he surrendered to military authorities on 13 April 1989.  

6.  On 19 June 1989, he was convicted by a special court-martial of:

* one specification of being AWOL from 7 to 10 April 1989
* one specification of stealing three checks
* three specifications of check forgery

7.  The court sentenced him to a bad conduct discharge, a forfeiture of $466.00 pay, reduction to the lowest enlisted grade, and confinement for 4 months.  

8.  On 24 July 1989, the convening authority approved the sentence, and except for the bad conduct discharge ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 

9.  On 8 February 1990, the U.S. Army Court of Military Review reviewed his discharge.  The Court affirmed the approved findings of guilty and the sentence.  

10.  Headquarters, U.S. Army Correctional Brigade, Fort Riley, KS, Special Court-Martial Order Number 35, dated 17 May 1990, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

11.  He was discharged on 30 May 1990.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of court-martial in accordance with Army Regulation 635-200 (Personnel Separations) with a bad conduct discharge.  This form further shows he completed a total of 2 years, 6 months, and 22 days of creditable military service and he had lost time from 7 to 12 April 1989, 6 to 9 January 1989, and 19 June to 22 July 1989. 

12.  On 20 February 1997, the Army Discharge Review Board (ADRB) also reviewed his discharge but found it proper and equitable.  As a result, the ADRB denied his petition for an upgrade. 

13.  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.

14.  Army Regulation 635-200, 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.

15.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a special 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 characterizes the misconduct for which he was convicted.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence was ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

3.  His contention that the convening judge recommended that his discharge be reviewed after an appropriate amount of time and upgraded if after further review there were no additional issues is without merit.  His case was in fact reviewed by the U.S. Army Court of Military Review and that Court affirmed the finding of guilty and the sentence.  His case was also reviewed by the ADRB which found his discharge proper and equitable and as such denied his petition.  

4.  His contention that it has been 23 years since he was discharged and he has carried himself with the utmost respect for his family and community is noted. However, the Army does not have a policy wherein a characterization of service is changed due to the passage of time.  

5.  His service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.  He is not entitled to the requested relief.

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)                                         AR20130004171



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ABCMR Record of Proceedings (cont)                                         AR20130004171



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