IN THE CASE OF:	   

		BOARD DATE:	  6 May 2014

		DOCKET NUMBER:  AR20130015702 


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 he served during Operation Iraqi Freedom in 2004 with honor.  He received numerous medals as proof of his good service.  He has contributed to society by advancing his education.  He has had a clean civilian background since his discharge.  His civilian background has been honorable.  All of the pay forfeitures as a result of his court-martial have been returned.  

3.  The applicant provides two copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and copies of his employer recognition certificate and Bachelor of Science diploma.

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, in pay grade E-1, on 16 July 2002 and he held military occupational specialty 13R (field artillery firefinder radar operator).

3.  On 23 January 2006, he was convicted by a general court-martial of one specification each of knowingly using one or more means of the identification of two different Soldiers with the intent to commit larceny of items valued at or about $1,249.70 and $1,300.00 and such use was in interstate commerce.  He was sentenced to a reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement for 16 months, and a bad conduct discharge.

4.  On 9 June 2006, the convening authority approved only so much of the sentence as provided for reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 12 months, and a bad conduct discharge; and except for the sentence extending to a bad conduct discharge, ordered the sentence duly executed.  The automatic forfeiture of all pay and allowances and adjudged forfeiture of all pay and allowances were deferred effective 6 February 2006 and the deferments were terminated on 9 June 2006.

5.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

6.  There is no evidence he applied to the U.S. Court of Military Appeals for a review of his case.

7.  Headquarters, U.S. Army Filed Artillery Center and Fort Sill, OK, General Court-Martial Order Number 104, dated 19 April 2007, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

8.  Accordingly, he was discharged in pay grade E-1 on 20 July 2007, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of a court-martial, other.  He was issued a bad conduct discharge.  He was credited with completion of 4 years, 2 months, and 11 days of net active service and time lost from 23 January 2006 through 16 November 2006.

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

	a.  Paragraph 3-10 provides that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general court-martial after completion of appellate review and after such affirmed sentence had been ordered duly executed.

	b.  Paragraph 3-7a provides that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

	c.  Paragraph 3-7b provides that a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

10.  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 change a court-martial 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 was convicted by a general court-martial of two specifications of intent to commit larceny with such use in interstate commerce and was sentenced to a bad conduct discharge.  His discharge was affirmed and he was discharged accordingly on 20 July 2007.

2.  He provided no evidence to show his discharge was unjust.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  His contentions and the documents he submitted were carefully considered; however, he has not provided sufficient evidence or argument to show his discharge should be upgraded to a general or a fully honorable discharge as a result.  

3.  Trial by court-martial was warranted by the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

4.  Any redress by this Board of the finality of a court-marital 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 offenses and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

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 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)                                         AR20130015702



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ABCMR Record of Proceedings (cont)                                         AR20130015702



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