IN THE CASE OF:	  

		BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140012206 


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 (BCD).

2.  The applicant states he received a court-martial for writing bad checks; however, he had direct deposit and he was not the person who cashed the checks.

3.  The applicant provides a self-authored statement.

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 8 April 1985.  He completed training and he was awarded military occupational specialty 63H (Track Vehicle Repairer).
3.  He received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 24 September 1987, for absenting himself from his unit, without authority, for the period 26 to 29 July 1987.

4.  On 17 February 1988, he was convicted by a general court-martial of:

   a.  eight  specifications of making and uttering checks in the amount of $500.00 on 19, 20, 23, 24, 25, 26, 29, and 30 June 1987, with the intent to defraud and for the procurement of lawful currency and thereafter dishonorably failing to place sufficient funds in or credit with the bank for payment of said check in full upon its presentation; and 
   
b.  one charge of violating Article 123 (forgery), UCMJ.

5.  He was sentenced to a BCD, a forfeiture of $600.00 pay for 18 months, and confinement for 18 months.

6.  He was subsequently incarcerated at Fort Riley, KS.  On 4 April 1989, he was placed on excess leave while awaiting the appellate review.

7.  On 25 April 1989, his general court-martial conviction sentence of a BCD, confinement for 18 months, and a forfeiture of $600.00 pay for 18 months was affirmed.  Article 71(c) having been complied with, the BCD would be executed.  The part of the sentence extending to confinement had been served.  On 2 May 1989, he was discharged accordingly.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 3-11, by reason of court-martial, with a BCD.  He completed 2 years, 10 months, and 28 days of net active service during this period and 29 days were excess leave.  He had lost time from 24 to 28 July 1987 due to being absent, without authority, from his unit and for the period 17 February to 3 April 1989 due to being in confinement.

9.  General Court-Martial Order Number 698, issued by U.S. Army Correctional Activity, Fort Riley, KS, dated 24 August 1989, rescinded his court-martial because it had been issued prior to completion of the applicant's appellate review.

10.  The evidence shows the U.S. Court of Military Appeals (USCMA) set aside the previous decision and ordered a new recommendation and action on the applicant's case.  
11.  General Court-Martial Order Number 641, issued by the U.S. Army Correctional Activity, Fort Riley, KS, dated 9 October 1990, states the applicant's sentence to a BCD, confinement for 18 months, and a forfeiture of $600.00 pay for 18 months, adjudged on 17 February 1988, as promulgated in General Court-Martial Order Number 52, dated 25 May 1988, as corrected by U.S. Army Court of Military Review Notice of Court-Martial Correction, dated 13 January 1989, had been finally affirmed.  Article 71(c) having been complied with, the BCD was to be executed.  That part of the sentence extending to confinement had been served.

12.  On 10 October 1989, because no petition for reconsideration had been filed within the prescribed rules of practice and procedure, the USCMA ordered the case final and complete.

13.  The applicant provides a self-authored statement in which he states he believes his discharge date was moved to a later date; therefore, it should override his previous discharge.

14.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  The version of the regulation in effect at the time, prescribed the policies and procedures for separating members with a BCD.  It stipulated that a Soldier would be given a BCD pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

15.  Army Regulation 635-200, 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.

16.  Army Regulation 635-200, 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.

17.  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's trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  He was given a BCD pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence was ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

3.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this Board 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.

4.  The applicant incorrectly contends that the fact that his discharge date was moved to a later date should override his previous discharge.  The applicant was placed on excess leave awaiting the appellate review.  The issue of his court-martial not being affirmed until October 1990 is irrelevant in regard to the narrative reason for his separation and his character of service.

5.  His service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.  He is not entitled to an upgrade of his BCD. 

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)                                         AR20140012206



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ABCMR Record of Proceedings (cont)                                         AR20140012206



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