PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            29 March 2001
	DOCKET NUMBER:   AR2000048303

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Christopher J. Prosser		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his bad conduct discharge (BCD) be upgraded to an honorable discharge (HD). 

3.  The applicant states, in effect, that he deserves to have his discharge upgraded based on his overall record of service.  He claims that while he was assigned to Germany where he spent extended periods in the field, his wife began to spend all their money to include their savings.  After returning from 
60 days of duty in Italy, in August 1992, creditors began harassing him to pay bills his wife had accrued and his wife threatened to leave him because he had no money.  He began shoplifting goods from the post exchange and returning them for cash refunds.  He indicates that a friend in New York heard of what he was doing and requested that he do the same for him and for other friends who had been informed.  These friends harassed him and they all desired that he make money for them.  In December 1992, he was caught stealing from the post exchange and this resulted in his being tried and convicted of shoplifting by a general court-martial. 

4.  The applicant is represented by counsel from the Disabled American Veterans (DAV), who supports his request for an upgrade to his discharge.  Counsel identifies some issues they believe need to be addressed in this case.  These factors include the fact that the applicant had honorably completed an enlistment, between June 1985 and May 1989, and his entire record of service should be considered during the review of this case.  In addition, they comment that the applicant was undergoing a very difficult time in his life due to his marital problems and the lack of money.  These factors they claim resulted in the applicant suffering from an increased level of stress, which should be considered a mitigating factor that contributed to the misconduct that led to his discharge.  Counsel further points out that the applicant has had no problems with authorities since his discharge, as substantiated by the enclosed Certificate of No Penal Record (Police Record Check), dated 20 April 1999.  In addition, they comment that the applicant is currently enrolled in school taking classes towards a degree. Further, one of his professors, a Vietnam veteran, attests that he is now serving his community in Puerto Rico where he manifests such virtues as honesty, dedication, and commitment to his family and friends.  Counsel concludes by stating that the applicant was in a difficult situation and made some bad choices at a desperate time in his life, which should not haunt him the rest of his life.  Since his discharge the applicant has been unable to secure gainful employment and has been denied employment by the Police Force, Fire Department, and the State Government, a difficulty that could be eased if his discharge were upgraded and his honorable service recognized.  This they conclude would allow him closure and the ability to move on with his life without being constantly reminded of some wrong choices he made early in life. 

5.  The applicant’s military records show that he initially enlisted in the Regular Army for four years on 19 June 1985.  On 4 May 1989, after completing 3 years, 10 months, and 16 days of active military service, he was honorably discharged for the purpose of immediate reenlistment.  On 5 May 1989, while serving in the rank of specialist/E-4 (SPC/E-4) at Fort Sill, Oklahoma, he reenlisted for four years.

6.  During his entire tenure on active duty the applicant earned the Army Service Ribbon, National Defense Service Medal, Overseas Service Ribbon, Army Good Conduct Medal, Army Achievement Medal, and M-16 Rifle Expert Marksmanship Badge.    

7.  A Criminal Investigation Division (CID) report of investigation (ROI), dated 
29 January 1993, concluded there was probable cause to believe that: the applicant and another soldier conspired to steal and later stole various pieces of merchandise from the Army Air Force Exchange Service (AAFES), Europe; stole merchandise from the main AAFES exchange in Baumholder, Germany, with a combined total value of $5,944.33, between 9 February 1992 and 19 December 1992; and exchanged this stolen merchandise at various other AAFES-Europe facilities and received the full cash value.

8.  On 10 June 1993, the applicant was tried by general court-martial (GCM) and found guilty of conspiracy to commit larceny, wrongful appropriation.  The resultant sentence included confinement for sixteen months, forfeiture of all pay and allowances, reduction to private/E-1, and a BCD.  

9.  On 11 August 1993, the GCM was promulgated in GCM Order Number 35, published by Headquarters, 1st Armored Division, in which the GCM convening authority approved the sentence and ordered all but the BCD portion of the sentence to be executed.  

10.  On 7 September 1993, the Army Court of Military Review on consideration of the entire record held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, the GCM findings and sentence were affirmed.

11.  On 17 February 1994, GCM Order Number 10 was published by Headquarters I Corps, Fort Lewis, Washington, which confirmed the sentence was finally affirmed and, based on Article 71(c) having been finally complied with, ordered the BCD portion of the sentence to be executed.  

12.  Accordingly, on 8 July 1994, the applicant was separated with a BCD, under the provisions of chapter 3, Army Regulation 635-200, as a result of court-martial.  At the time of his discharge he had completed a total of 7 years, 11 months, and 16 days of active military service and had accrued 1 year and 
29 days of time lost due to confinement. 

13.  In support of his request, the applicant provided a copy of his honorable discharge from his first enlistment, which covered a period of continuous honorable active service from 19 June 1985 to 4 May 1989.  He also provided several certificates of training and achievement to attest to the honorable nature of the majority of his service; a Police Report indicating that he has had no criminal record subsequent to his discharge; and various academic reports to show his post service educational achievement.  

14.  The applicant also provided a letter of support from a college professor, dated 15 November 1999.  The professor attests to the fact that the applicant was an excellent student who had a genuine interest in solving social problems in their community.  He also claims that the applicant was always willing to help fellow students and neighbors and concludes that the applicant is now serving his community well and manifests such virtues as honesty, dedication, and commitment to his family and friends, and to the people of Puerto Rico in general. 

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV,  establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed.

CONCLUSIONS:

1.  By law, this Board is empowered to change the discharge 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.  After a thorough review of the applicant’s record and any issues submitted by the applicant and his counsel, the Board finds no cause for clemency in this case.  

2.  Based on the seriousness of the offenses for which the applicant was convicted, the Board concludes the resultant BCD was an appropriate punishment.  Therefore, notwithstanding the contentions of the applicant and his counsel, there are no factors presented that are sufficient to warrant granting the requested relief. 

3.  Although the Board finds it would be inappropriate to upgrade the applicant’s BCD, it appears that his honorable discharge of 4 May 1989, made for the purpose of immediate reenlistment, terminated a period of honorable and faithful service and should be considered a complete and unconditional separation.

4.  The Board concludes the circumstances of the applicant’s honorable discharge have worked an injustice upon him by depriving him of consideration for certain Department of Veterans Affairs (VA) benefits to which he may be entitled by reason of that period of honorable service.

5.  In consideration of the applicant’s satisfactory performance of duty from 
19 June 1985 to 4 May 1989, the Board finds it would be unjust to consider his honorable discharge of 4 May 1989 as other than a complete and unconditional separation from military service. 

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that he was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 
4 May 1989 and by issuing him a separation document that reflects this honorable period of active duty service. 

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___cjp __  ____le___  _js _____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR2000048303	
SUFFIX		
RECON		
DATE BOARDED	2001/03/29	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1994/07/08	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	AR 635-200 C3	
BOARD DECISION	GRANT PARTIAL 	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.