IN THE CASE OF:  	  

		BOARD DATE:  4 December 2014	  

		DOCKET NUMBER:  AR20140006754 


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, an upgrade of his discharge.

2. The applicant states:

* he made a terrible mistake, do not hold it (his mistake) against him
* he has changed
* he has three kids
* he is trying to get into the medical field

3.  The applicant provides no documents in support of this application. 

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 record shows he enlisted in the Regular Army on 13 January 1989.

3. The applicant's record contains a copy of Headquarters, General Court-Martial (GCM) Order Number 16, dated 26 March 1990, which shows he pled guilty and was found guilty of obtaining services under false pretenses, of a value in excess of $100.00 between 1 June and 1 August 1989.

4.  The applicant was sentenced to reduction to private (PV1)/E-1, a forfeiture of all pay and allowances, confinement for a period of 9 months, and the issuance of a bad conduct discharge (BCD).  The sentence was approved and, except for the part of the sentence extending to a BCD, was executed.

5. The applicant's record contains a copy of GCM Order Number 488, dated    22 August 1990, which shows, in pertinent part, the applicant's sentence was finally affirmed and the BCD was ordered duly executed.

6.  The applicant's DD Form 214 shows he was discharged on 7 September 1990 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3, by reason of court-martial.  This form further lists the applicant's character of service as "bad conduct."

7.  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 ABCMR acts, the Board is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-11 (BCD) states a Soldier will be given a BCD pursuant only to an approved sentence of a general or special 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.

	a.  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.

	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 contention that his discharge should be upgraded because he has changed, has kids, and wants to go into the medical field was carefully considered and found to be without merit.  

2.  His post-service conduct is commendable.  However, it has no bearing on his behavior during his active duty service.

3.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for programs.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.

4. The evidence of record shows the applicant was convicted by a GCM and he received a BCD. Trial by a GCM was warranted by the serious nature of the offense for which the applicant was charged and convicted. The sentence is commensurate with the misconduct for which the applicant was convicted.

5.  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.  Absent any mitigating factors, the type of discharge directed was 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 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)                                         AR20140006754



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ABCMR Record of Proceedings (cont)                                         AR20140006754



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