IN THE CASE OF:	  

		BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140009859 


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) to honorable.

2. The applicant states:

* he was arrested and charged with conspiracy in 1991, at Fort Polk, LA
* he was court-martialed and sentenced to 18 months confinement
* that traumatic event was the turning point in his life because he was young and irresponsible then, but cannot undo those mistakes
* since he has been back in civilian life, he has been a positive asset to his community
* he earned his Commercial Driver's License and has been in transportation for 18 years
* God put it in his heart and he opened his own business in 2003, which employed 20 drivers and four staff members
* he has given back to the community on a personal and business level and not been in any trouble since
* his motto is to try to make a difference in the lives of others
* he would like to be able to proudly list his service on any application in order for society to know he served his county proudly
* he learned from his mistakes and teaches others how to serve their country
* he is the proud father of a young daughter who is in the Air Force and he would love for them to be able to stand together proudly
* he wants to apply for Department of Veterans Affairs benefits
3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a DD Form 293 (Application for the Review of Discharge from the Armed Services of the United States)
* a character reference
* 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 was born on 23 January 1970 and enlisted in the Regular Army on 21 July 1988 at the age of 18 years.

3. The applicant's record contains a copy of Headquarters, General Court-Martial (GCM) Order Number 35, dated 8 November 1991, which shows he pled not guilty, but was found guilty of:

	a.  assisting, encouraging, advising and/or counseling a Soldier to commit aggravated assault on 13 January 1991; and 

	b.  conspiring to commit aggravated assault with a firearm, and in order to effect the object of the conspiracy the applicant identified several persons for a Soldier to fire his weapon upon on 13 January 1991.

4.  The applicant was sentenced to reduction to private (PV1)/E-1, a forfeiture of all pay and allowances, confinement for a period of 18 months, and the issuance of a BCD.  The sentence was approved and, except for the part of the sentence extending to a BCD, was executed.

5. The applicant's record contains a copy of GCM Order Number 34, dated      10 February 1993, which shows, in pertinent part, the applicant's sentence was finally affirmed and the BCD was ordered duly executed.

6.  The applicant's DD Form 214 shows he was discharged on 5 March 1993 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3, by reason of court-martial.  This form further lists the applicant's character of service as "bad conduct."

7.  He submitted a character reference, dated 2 December 2013, from a co-worker who indicates that the applicant has always been generous, cordial and industrious from the first time they met. 

8.  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 ABCMR acts, the Board is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 (BCD) states a Soldier will be given a BCD pursuant only to an approved sentence of a general or special 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.

	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.  



DISCUSSION AND CONCLUSIONS:

1. The applicant's contention that his discharge should be upgraded because he has become an asset to society, wants to make his daughter proud, and wants VA benefits was carefully considered and found to be without merit.  

2.  His post-service conduct is commendable.  However, it has no bearing on his behavior during his active duty service.

3.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for programs.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.

4. The evidence of record shows the applicant was convicted by a GCM and he received a BCD. Trial by a GCM was warranted by the serious nature of the offense for which the applicant was charged and convicted. The sentence is commensurate with the misconduct for which the applicant was convicted.

5.  His record shows he was 21 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 military service.  

6.  Any redress by this Board of the finality of a court-martial 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.  Absent any mitigating factors, the type of discharge directed was 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)                                         AR20140009859





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ABCMR Record of Proceedings (cont)                                         AR20140009859



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