IN THE CASE OF:	  

		BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140009921 


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 a general, under honorable conditions discharge.

2. The applicant states:

* he was court-martialed for conspiring to commit larceny, served 22 months and was released prior to serving the full term
* he was a young Soldier and had not had any serious incidents during his military career
* he looked forward to a promising career and retirement after 20 years
* the circumstances involved telling his friends about a warehouse with no alarm full of televisions and videocassette recorders (VCRs) 
* the conversation took place in his room, but was not intended to be a plan for a crime
* his friends took matters into their own hands, broke into the warehouse and stole several electronic items
* his friends told him about the break-in, offered to sell him some of the products and he brought a VCR
* his real crime was not telling on his friends because he felt he was protecting them
* conspiracy was a crime he had never heard of until he was charged with it, and he did not have to go into the warehouse to be charged with the crime
* that is how he was convicted of larceny and housebreaking 
* this information is supported by his trial transcript and sentencing sheet
* he has not been a model citizen since his discharge and has had setbacks
* his life and opportunities might have been better if he had a general, under honorable conditions discharge
* he wants to apply for Department of Veterans Affairs (VA) benefits, but was told he was not eligible because of his BCD

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 was born on 14 December 1974 and enlisted in the Regular Army on 14 July 1993 at the age of 18 years.

3. The applicant's record contains General Court-Martial (GCM) Order Number 7, dated 8 April 1997, which shows he pled not guilty but was found guilty of:

	a.  conspiring to commit larceny of military property of a value more than $100.00 on 11 August 1996; and 

	b.  larceny of military property of a value more than $100.00 on 12 August 1996; and 

	c.  breaking into a house on 12 August 1996.

4.  The applicant was sentenced to reduction to private (PV1)/E-1, a forfeiture of all pay and allowances, confinement for a period of two years, 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 38, dated        1 April 1999, 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 30 April 1999 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.  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.

8.  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.  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 wants VA benefits was carefully considered and found to be without merit.  

2.  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.

3.  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.

4.  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 

5.  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)                                         AR20140009921





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ABCMR Record of Proceedings (cont)                                         AR20140009921



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