IN THE CASE OF:	

		BOARD DATE:	    1 April 2014

		DOCKET NUMBER:  AR20130013570 


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 to a general discharge.

2.  The applicant states, in effect:

* the penalty was too severe for the alleged crime of forgery
* he was 18 years old
* he received 18 months of confinement, a reduction in rank, and money was garnished from his pay check
* the double jeopardy clause was violated because money was garnished approximately one month before his court date and prior to his guilty plea
* the bad conduct discharge he received was a result of ineffective counsel 

3.  The applicant provides no additional documentary 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 was born on 15 November 1971.  He enlisted in the Regular Army on 4 August 1989 for a period of 4 years.  He completed his training and he was awarded military occupational specialty 19D (cavalry scout).       

3.  On 31 October 1990, in accordance with his pleas, he was convicted by a general court-martial of stealing 4 checks and forgery (three specifications).  He was sentenced to be dishonorably discharged from the service, to be confined for 18 months, to forfeit all pay and allowances, and to be reduced to E-1.  On 
20 December 1990, the convening authority approved the sentence.

4.  On 27 February 1991, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

5.  On 26 June 1991, the Deputy Assistant Secretary of the Army (Department of the Army Review Boards and Equal Employment Opportunity Compliance and complaints Review) upgraded the dishonorable discharge to a bad conduct discharge effective 16 May 1991.

6.  On 6 September 1991, the convening authority ordered the bad conduct discharge duly executed.

7.  He was issued a bad conduct discharge on 7 October 1991 under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), as a result of a court-martial.  He completed a total of 1 year, 2 months, and 23 days of creditable active service with 341 days of lost time.

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

	a.  Chapter 3 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

   b.  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.
9.  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 he was 18 years old.  However, age is not a sufficiently mitigating factor.  Although he was 17 years of age when he enlisted, he successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military term of service.  

2.  His contention the penalty was too severe for the alleged crime of forgery was noted.  However, evidence shows the Deputy Assistant Secretary of the Army (Department of the Army Review Boards and Equal Employment Opportunity Compliance and complaints Review) had already granted clemency in June 1991 by upgrading his dishonorable discharge to a bad conduct discharge.

3.  His remaining contentions (double jeopardy clause and ineffective counsel) relate to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.

4.  A 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 discharge appropriately characterizes the misconduct for which he was convicted.

5.  His record of service included one general court-martial conviction for stealing checks and forgery.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

6.  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 were therefore appropriate.  As a result, clemency is not warranted in this case.
7.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130013570





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ABCMR Record of Proceedings (cont)                                         AR20130013570



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