BOARD DATE:	  6 November 2014

		DOCKET NUMBER:  AR20140015690 


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.

2.  The applicant states the discharge was based on only one incident that occurred after he served 50 months in the military to defend our country.  He reenlisted in 2004 and after coming back from Iraq, he was court-martialed.  The discharge was unfair and he feels it was too severe for the offense he committed. The command did not give enough weight to his previous good record, awards and decorations.  At the time, he was going through a horrible divorce.  Before his tour to Iraq his divorce was in process.  He was forced by his commander to move out of his home and pay his then wife more than half of his paycheck.  Knowing that this was unfair, he took the issue up to the Judge Advocate General (JAG) and JAG thought that this was unfair as well, and they fixed the issue.  He feels this is the reason why he was court-martialed and his commander did everything in his power to get him out of the service.  He was again going through a horrible divorce and at the same time went to war in Iraq which impaired his ability to serve.  He wants the Board to consider the requested upgrade because not only was he under a lot of distress at the time, but he had a great record during the previous 50 months serving our country.

3.  The applicant does not provide any evidence. 

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 records show he enlisted in the Regular Army on 8 July 2002. He was trained in and held military occupational specialty 92F (Petroleum Supply Specialist). 

3.  He served in Iraq, executed a reenlistment, and attained the rank/grade of specialist/E-4.  He was awarded or authorized the Army Commendation Medal, National Defense Service Medal, Global War on Terrorism Service Medal, and Iraq Campaign Medal. 

4.  On 28 September 2006, consistent with his pleas, he was convicted by a general court-martial of one specification of violating Article 107 of the Uniform Code of Military Justice (UCMJ), making a false official statement that he did not steal money, and one specification of violating Article 121 of the UCMJ, stealing monies from another Soldier.  The court sentenced him to a bad conduct discharge, confinement for 1 year, and a reduction to the lowest enlisted grade. 

5.  On 6 April 2006, the convening authority approved a lesser sentence of reduction to E-1, confinement for 320 days, and a bad conduct discharge, and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  On 29 June 2007, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

7.  There is no evidence he petitioned the U.S. Court of Appeals of the Armed Forces for a grant of review of his case. 

8.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 236, dated 1 November 2007, shows the convening authority ordered the applicant's bad conduct discharge duly executed after completion of all required post-trial and appellate reviews.

9.  He was discharged on 29 February 2008.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of a court-martial in accordance with Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) with a bad conduct discharge.  His DD Form 214 shows he completed 4 years, 11 months, and 20 days of net active service this period.  He also had time lost from 
28 August 2006 to 30 April 2007.

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 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.

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

	a.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge 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 is ordered duly executed.

	b.  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.

	c.  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.

12.  According to the Manual of Courts-Martial, the maximum punishment for violating Article 107 of the UCMJ is a dishonorable discharge, forfeiture of all pay and allowances, and five years confinement if found guilty.  The maximum punishment for violating Article 121 of the UCMJ (depending on offense and/or value) is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  He stole from a fellow Soldier.  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 bad conduct discharge 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.

4.  Contrary to his contention, his punishment was not severe.  Given the nature of his offenses (making a false statement and theft), he could have received a much harsher punishment.  It appears the court considered his service, rank, awards and decorations, and other factors in reaching its verdict.  The 
court-martial (and subsequent appellate review) would have been the proper forums to raise the issues he now raises. 

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 the requested relief.

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)                                         AR20140015690





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ABCMR Record of Proceedings (cont)                                         AR20140015690



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