IN THE CASE OF: BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20160000940 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: 3 October 2017 DOCKET NUMBER: AR20160000940 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: 3 October 2017 DOCKET NUMBER: AR20160000940 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) to honorable. 2. The applicant states, in effect: * his characterization of service should be reflected as honorable instead of bad conduct * he pled guilty to receiving basic allowance for housing (BAH) when he was not legally authorized * the court-martial took place on 3 November 2006, which was 11 months after his contractually obligated end of term of service (ETS) date * he enlisted in the Regular Army for 3 years on 20 November 2002, thus resulting in an ETS date of 19 November 2005 * he was neither afforded the opportunity to out-process from active duty, nor was a reenlistment contract executed * he is providing a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he served honorably in his military occupational specialty (MOS) for 3 years and 6 months * he is also providing a copy of his Permanent Orders (PO) that shows he was awarded an Army Good Conduct Medal for exemplary behavior, efficiency, and fidelity * he fully accepts responsibility for his actions while serving on active duty, and he also takes great pride in the honorable service that he completed 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * General Court-Martial Order * DD Form 4 (Enlistment/Reenlistment Document) * DA Form 3286-59 (Annex A and C) * Permanent Orders (PO) 035-32 (Good Conduct Medal) * self-authored letter 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 20 November 2002 for 3 years. He completed training and was awarded military occupational specialty 13B (Cannon Crewmember). 3. Permanent Orders 035-23, dated 18 February 2006, awarded or authorized him the Army Good Conduct Medal for the period 21 November 2002 to 20 November 2005. 4. On 3 November 2006, he pled guilty and was found guilty by a general court-martial of one specification of conspiring with Sergeant C.D.C. between on or about 1 January 2005 to 30 August 2005, to commit larceny of BAH funds valued at more than $500.00 and one specification of stealing BAH funds valued at more than $500.00. 5. He was sentenced to be discharged from the service with a BCD, 11 months of confinement, and reduction to the grade of E-1. Only so much of the sentence as provided for a BCD, 8 months of confinement, and reduction to E-1 was approved and, except for that part of the sentence extending to a BCD, ordered executed. 6. On 5 July 2007, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. 7. Headquarters, U.S. Army Armor Center and Fort Knox, General Court-Martial Order Number 230, dated 12 October 2007, shows that the applicant’s sentence was affirmed, Article 71(c) was complied with, and the BCD was ordered executed. 8. On 29 February 2008, he was discharged. His DD Form 214 shows he was discharged in the rank of private (PV1)/E-1 and issued a BCD. He completed 4 years, 8 months, and 26 days of net active service with 195 days (6 months and 15 days) of lost time due to confinement. It also shows he was retained in service 832 days for the convenience of the government and “member has not completed first full term of service.” REFERENCES: 1. Army Regulation 635-200 provides for the following characterizations of service: a. Paragraph 3-7a states 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 states 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. 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 Army Board for Correction of Military Records (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's trial by a general court-martial was warranted by the gravity of the offenses charged. His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations. 2. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000940 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000940 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2