IN THE CASE OF: BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20150011205 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20150011205 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20150011205 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 correction of his record by upgrading the characterization of his service. 2. The applicant states he has suffered 8 years for the bad mistake that he made. He accepts full responsibility for his actions; however; he believes that it is time for him to move forward with his life. That mistake is the only blemish on his 9 year career. He literally lost everything and cannot gain decent employment. Every chance he gets he pays back some of the money. He has not been in any trouble since his release from confinement. He completed his parole without incident. He wants to become a more productive citizen. The characterization of his service precludes him from becoming the man he could be. He served two terms of enlistment and was on his third. Once, he was a proud staff sergeant and served in Iraq. He is asking that one mistake not cause him pain and suffering for the rest of his life. 3. The applicant provides no documentation to support his request. 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 on 11 August 1999. He was a staff sergeant stationed in Korea when a general court-martial convicted him on 22 April 2004 of: a. violating the Uniform Code of Military Justice (UCMJ), Article 107, by falsely claiming/submitting: * his wife was residing in Florida * his dependents were residing in Florida * he had a wife * he got married in Florida in January 2001 * he completed the Battle Staff Noncommissioned Officer Course * a falsified college transcript for inclusion in his Official Military Personnel File (OMPF) * a falsified Meritorious Service Medal Certificate for inclusion in his OMPF b. violating the UCMJ, Article 121, by committing two specifications of stealing: * funds in the form of Basic Allowance for Housing of a value of more than $500, the property of the U.S. Government * funds in the form of Family Separation Allowance of a value of more than $500, the property of the U.S. Government c. violating the UCMJ, Article 134, by wearing an unauthorized ribbon on his uniform. 3. The sentence was adjudged on 23 February 2007 and, as modified by the sentencing authority, consisted of reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 36 months, a fine of $34,000 (with an additional 16 months of confinement if not paid), and separation with a bad conduct discharge (BCD). The sentence was ordered executed, except for the BCD, which was suspended pending the appellate review. 4. U.S. Army Field Artillery Center, Fort Sill, OK, General Court-Martial Order Number 28, dated 31 January 2008, noted that Article 71 of the UCMJ (pertaining to review of the case and time for the accused to appeal) had been complied with and ordered the BCD executed. 5. On 7 April 2008 the applicant was issued a BCD. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 7 years, 5 months, and 16 days net active service this period. His authorized awards are listed as the Army Commendation Medal (3rd Award), Army Achievement Medal, Presidential Unit Citation, Army Good Conduct Medal (3rd Award), National Defense Service Medal, Armed Forces Expeditionary Medal, Global War on Terrorism Service Medal, Korea Defense Service Medal, Iraq Campaign Medal with one Campaign Star, Noncommissioned Officer Professional Development Ribbon with Numeral 2, Army Service Ribbon, Marksman Marksmanship Qualification Badge, and Driver and Mechanic Badge with Mechanic Bar. REFERENCES: 1. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the authority and procedures for administrative separations. 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. 2. The Table of Maximum Punishments of the Manual for Courts Martial shows that a BCD is authorized for any larceny of more than $100, any false official statement, altering a public record, and wearing any unauthorized decoration. 3. 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 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: 1. The applicant claims that his court-martial conviction represents a single blemish on his 9 year career. The evidence shows that he was convicted of numerous offenses for which a BCD is authorized as the maximum punishment. 2. Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations. Other than his own statement, the available evidence does indicate his sentence was too harsh. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011205 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011205 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2