IN THE CASE OF:	  

		BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20150002759 


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 (BCD).

2.  He states that after 22 years he wishes to be in good standing and an upgrade to his discharge will assist him to become a productive citizen in the community.

3.  He 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 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 enlisted in the Regular Army (RA) on 1 March 1988.  He was trained in and awarded military occupational specialty (MOS) 31K (Combat Signaler).
3.  His records contain General Court-Martial (GCM) Orders Number 10, issued by Headquarters, 32nd Army Air Defense Command, dated 26 March 1991, and a DA Form 4430-R (Department of the Army Report of Result of Trial).  These documents show the applicant was tried by GCM on 26 November 1990 and found guilty of the following charges and specifications:

* stealing a Soldier’s checkbook
* stealing a Soldier’s check
* intending to defraud by writing check in the amount of $50.00 on the account of another Soldier
* opening, secreting, and stealing mail matter from the unit mail room
* resisting apprehension from security policeman and noncommissioned officers (NCO)
* being drunk and disorderly

4.  The resulting sentence, adjudged on 26 November 1990, was a BCD, confinement for 10 months, forfeiture of all pay and allowances, and reduction to private (PV1/E-1).  Only so much of the sentence that provided for a BCD, confinement for 10 months, forfeiture of all pay and allowance, and reduction to the grade of PV1/E-1 was approved, and except for the BCD, was ordered executed.

5.  On 20 December 1991, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

6.  On 3 September 1992, GCM Order Number 98, issued by Headquarters, U.S. Army Armor Center and Fort Knox, KY, directed that, Article 71c of the Uniform Code of Military Justice having been complied with, the BCD portion of the sentence be duly executed.  On 28 September 1992, the applicant was discharged accordingly.

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his discharge shows he was discharged as the result of court-martial and received a BCD.  It also shows at the time of his discharge he completed 3 years, 10 months, and 29 days of creditable active military service during the period under review with lost time from 20 November 1990 to 18 July 1991.

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

   a.  Chapter 3 provides the policies and procedures for separating members with a dishonorable discharge or a BCD.  It stipulates that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the BCD portion of 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.

9.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  Under the provisions of 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 contends his BCD should be upgraded because it will assist him in becoming a productive citizen.  His sincerity is not in question; however, there is no evidence in the record nor did he provide evidence to support clemency.

2.  The evidence of record confirms he was convicted by a GCM of theft, intent to defraud, resisting apprehension, tampering with mail, and being drunk and disorderly.  His trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request for an upgrade of his discharge.

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)                                         AR20150002759



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ABCMR Record of Proceedings (cont)                                         AR20150002759



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