IN THE CASE OF:	   

		BOARD DATE:	  18 June 2015

		DOCKET NUMBER:  AR20140018561 


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 bad conduct discharge (BCD).

2.  The applicant states:

   a.  He was attending college and waiting on his financial aid to be approved when he decided to sign his financial aid counselor's name to receive an advancement until the paperwork was approved.  He was charged with forgery.  He was 18 years of age at the time and didn't know any better.  At the time he was training at the Olympic Training Center and was ranked as one of the top three wrestlers in the United States.  He was approached by the head coach for the World Class Athlete Program (WCAP) about joining their team.  He was told he could not join because of the forgery charge. 

   b.  Six months later, he was told with a different date of birth and social security number he would be able to pass the background check and he decided to do it.  He joined the Army on 6 August 1996 and entered the WCAP.  They won a U.S. National title for the Army and he worked in the program for four consecutive years.  At the time he was stationed in Georgia.  He was reassigned to Fort Carson, CO.  In May 1997, two policemen approached him about money he owed to a bank.  They advised him the bank had filed a report for bad checks.  His company commander told him to pay the money back to the bank and look into the charges.  He repaid the bank.

   c.  A new commander was assigned and this commander reviewed his police file.  The commander ordered an investigation and the Criminal Investigation Division (CID) became involved.  After CID's investigation he was charged with larceny and fraudulent enlistment under a false date of birth.  For the larceny charge, he had repaid the money one year before the investigation.  For the fraudulent enlistment, it was committed with the help and advice of the WCAP to get him into the wrestling program.

3.  The applicant provides no additional 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 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 the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army, in pay grade E-1, on 3 September 1996, for 3 years.  He was awarded military occupational specialty 11B (infantryman).  

3.  On 12 June 1997, he extended his 3 year enlistment for 14 months with a new established expiration of term of service date of 2 November 2000.

4.  On 16 July 1997, he was convicted by a general court-martial of seven specifications of attempted larceny and one specification each of fraudulent enlistment and making a false official statement.  He was sentenced to a reduction to pay grade E-1, a total forfeiture of all pay and allowances, 15 months of confinement, and a BCD.

5.  On 22 October 1997, the convening authority approved the sentence and forwarded the record of trial to the U.S. Army Court of Military Review.

6.  On 30 November 2000, the U.S. Army Court of Criminal Appeals approved the findings of guilty and the sentence, and amended specification 2 of charge IV to larceny of $400, and specification 1 of charge V to obstruction of justice.
7.  There is no evidence he applied to the U.S. Court of Military Appeals within the allotted time for a review of his case.

8.  The U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, KS, General Court-Martial Order Number 95, dated 27 November 2001, shows that after completion of all required post-trial and appellate reviews, the convening authority affirmed the applicant's sentence and ordered it executed.

9.  He was discharged accordingly on 27 November 2001, under the provisions of Army Regulation 635-200 (Personnel Separations –Enlisted Separations), chapter 3, as a result of a general court-martial.  His service was characterized as bad conduct.  He was credited with completing 5 years, 2 months, and 25 days of active service.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 3-10 - An enlisted person would be given a BCD pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence had been ordered duly executed. 

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

11.  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 change a court-martial 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 was convicted by a general court-martial and was sentenced to a BCD.  His discharge was affirmed and he was discharged accordingly on 27 November 2001.

2.  Trial by court-martial was warranted by the offenses changed.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

3.  He provided no evidence to show the charges were not valid and his discharge was unjust.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or an argument to show his discharge should be upgraded to a general or fully honorable discharge.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.  

4.  Any redress by this Board of the finality of a court-marital 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.  Given the offenses and absent any mitigating factors, the type of discharge directed and the reasons were 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)                                         AR20140018561



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ABCMR Record of Proceedings (cont)                                         AR20140018561



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