BOARD DATE: 6 March 2015
DOCKET NUMBER: AR20140010605
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 that his bad conduct discharge (BCD) be upgraded.
2. The applicant states that he has been a productive citizen since his discharge and deserves a second chance because he is a single dad trying to better himself.
3. The applicant provides no additional documents with his 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 enlisted in the Regular Army on 18 May 1994 for a period of 3 years and training as an armor crewman. He completed his one-station unit training at Fort Knox, Kentucky and was transferred to Fort Hood, Texas for his first duty assignment.
3. His records show that he was absent without leave (AWOL) during the period 18 September to 13 October 1995 and he was confined by civil authorities during the period 11 December to 21 December 1995. His record is silent as to any punishment imposed.
4. On 27 August 1996, he was convicted by a general court-martial of stealing checks from another Soldier and four specifications of stealing property of another Soldier and breaking restriction. He was sentenced to confinement for 7 months, forfeiture of all pay and allowances, and a BCD.
5. On 22 January 1999, orders were published by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma which announced the applicants sentence as approved by the convening authority had been affirmed pursuant to Article 71c and directed that his BCD be duly executed.
6. On 17 February 1999, the applicant was discharged pursuant to a duly-affirmed court-martial conviction. He had served 4 years, 1 month and 20 days of active service and he had 157 days of lost time due to AWOL and confinement.
7. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for the separation of enlisted personnel.
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.
c. 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. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with the applicable law and regulation and the discharge appropriately characterizes the misconduct for which the applicant was convicted. Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.
2. The applicants contentions have been considered. However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his offenses, the lack of mitigating circumstances and his otherwise undistinguished record of service.
3. Accordingly, his sentence was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.
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.
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