IN THE CASE OF:	  

		BOARD DATE:	  30 September 2014

		DOCKET NUMBER:  AR20140001776 


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, in effect, that his bad conduct discharge (BCD) be upgraded.

2.  The applicant states that he is not the same person and his life has changed in many ways since he committed this crime; however, the guilt, the shame, and the devastating effect it had on those who looked up to him continues to haunt him to this day.  He comes from a military family in which the majority of them have served in the Armed Forces, and some are currently serving now.  Not only did he shame his name, he shamed his unit, his commanders, but most of all the troops he was in charge of who rallied around him like family and forgave him.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and Department of Veterans Affairs (VA) Form 4138 (Statement in Support of Claim).

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 8 March 1984, the applicant enlisted in the Regular Army.  After completing his initial training he served as a combat engineer.

3.  General Court-Martial Order Number 14, Headquarters, United States Army Infantry Center and Fort Benning, dated 6 July 1995, shows the applicant was convicted of violating:

* Article 132 (Fraud), two specifications , presenting a false claim
* Article 121 (Larceny) two specifications 
* Article 81 (Conspiracy), conspiracy to commit larceny and present a false claim

	a.  His sentence, adjudged on 16 March 1995, included reduction to the rank/grade of private (PVT/E-1) a forfeiture of all pay and allowances, confinement at hard labor for one year, and a BCD.

	b.  The convening authority approved the sentence on 6 July 1995.

4.  On 15 August 1995, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

5.  General Court-Martial Order Number 38, Headquarters, U.S. Army Armor Center, and Fort Knox, KY, Fort Knox, KY, dated 26 April 1996, announced the sentence had been affirmed.  Article 71(c) having been complied with, the sentence was to be executed.

6.  The applicant's DD Form 214 shows he was discharged on 12 September 1996.  He received a BCD characterization of service.

7.  The applicant provides a statement in which he contends that while stationed at Fort Benning, GA, he was approached by a fellow Soldier and a neighbor about how he could get money from Transportation by completing a "Do It Yourself" move.  They showed him how to alter the paperwork from previously completed moves by whiting out everything but the transportation officer's signature and then submitting a claim for compensation.  He committed this act on two occasions.  His fellow Soldier was caught and he turned in all the others Soldiers involved.  This led to the applicant's court-martial and ultimately to his BCD.

8.  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.

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

	a.  Paragraph 3-7a provides 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.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his BCD was carefully considered and found to lack merit.

2.  The applicant's sincere remorse is not in question; however, he has not provided any documentary evidence or convincing argument showing he did not commit the crime for which he was convicted.  The available evidence shows that his court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the final discharge appropriately characterizes the misconduct for which the applicant 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.  Given the seriousness of the applicant's misconduct, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

4.  In view of the above, the applicant’s request should be denied.

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)                                         AR20140001776





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ABCMR Record of Proceedings (cont)                                         AR20140001776



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