BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20140015851 


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, clemency and an upgrade of his bad conduct discharge (BCD).

2.  The applicant states his previous wife wrote 52 bad checks while he was on active duty.  He was 19 years old and another Soldier was giving him a hard time when he learned about the bad checks so he hit him, resulting in a court-martial.

3.  The applicant provides no additional documents.  

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 was born on 11 June 1967 and he enlisted in the Regular Army on 7 August 1985 at the age of 18.  He served in Germany from 10 March to 6 December 1987.

3.  On 7 December 1987, he was convicted by a general court-martial of 38 specifications of uttering worthless checks; wrongfully using marijuana; and stealing a track suit, robe, and ski cap.

4.  He was sentenced to a BCD, confinement for 26 months, a forfeiture of $400 pay for 26 months, and reduction to the rank/pay grade of private/E-1.  

5.  On 2 February 1988, only that portion of the sentence that provided for a BCD, confinement for 18 months, a forfeiture of $400 pay for 26 months, and reduction to private, E-1 was approved and except for the BCD, was executed.  

6.  On 15 April 1988, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  

7.  On 25 October 1988, the BCD was ordered executed.  He was discharged on 25 November 1988 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, by reason of court-martial – other, with the issuance of a BCD.  He completed 2 years and 4 months of creditable active service with lost time from 7 December 1987 to 25 November 1988.

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

   a.  Paragraph 3-10 of this regulation states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general 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.

	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.

9.  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 statement regarding his previous wife writing 52 bad checks while he was on active duty is acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct which led to his BCD.  

2.  The applicant contends the applicant was 19 years old and another Soldier gave him a hard time when he learned about the bad checks.  Records show the applicant was 20 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation.  

3.  The evidence of record shows the applicant was convicted by a general court-martial of 38 specifications of uttering worthless checks; wrongfully using marijuana; and stealing a track suit, robe, and ski cap.  

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

5.  The evidence of record does not indicate the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for clemency or for 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)                                         AR20140015851



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ABCMR Record of Proceedings (cont)                                         AR20140015851



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