ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 October 2019 DOCKET NUMBER: AR20190003879 APPLICANT REQUESTS: removal of his court-martial conviction that occurred on or about 1 March 1989 to 31 January 1990 from his military records. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Federal Bureau of Investigation (FBI) Identification Record, dated 18 January 2019 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: * even though his court-martial sentenced him to a "Bad Conduct Discharge on 17 May 1990," he was retrained and reinstated on or about 1 June 1990 * he separated from military service on or about 15 May 1992 with an honorable discharge 3. He enlisted in the Regular Army on 1 May 1985. 4. His records contain a DA Form 4187 (Personnel Action), dated 2 February 1990, showing his duty status changed from present for duty to confined by military authorities effective 23 May 1989. 5. Headquarters, 1st Armored Division, Fuerth, Germany, General Court-Martial Order Number 123, dated 19 September 1989, shows he was found guilty of nine specifications of intent to defraud and for procurement of lawful currency by wrongfully and unlawfully uttering checks in the amount of $2,534.00 without sufficient funds. His sentence was adjudged on 23 May 1989. He was sentenced to a bad conduct discharge, confinement for 11 months, forfeiture of all pay and allowances, and reduction to private/E-1. 6. His records contain a DA Form 4187, dated 14 February 1990, showing his duty status changed from confined by military authorities to present for duty effective 14 February 1990. 7. U.S. Army Correctional Brigade, Fort Riley, KS, General Court-Martial Order Number 258, dated 17 May 1990, shows the unexecuted portion of the sentence to a bad conduct discharge, confinement for 11 months, and forfeiture of all pay and allowances, was remitted. He successfully completed the Military Instruction Course and was returned to duty. 8. His records contain a DA Form 4187, dated 7 November 1991, showing he requested early release from active duty. His company commander recommended approval on 8 November 1991. 9. On 15 May 1992, he was honorably released from active duty. His DD Form 214 shows the narrative reason for separation as "Convenience of the Government – 1992 Early Transition Program." He completed 6 years, 3 months, and 24 days of net active service during this period and accrued 267 days of lost time lost due to confinement during the period 23 May 1989 through 13 February 1990. 10. He provided an FBI Identification Record, dated 18 January 2019, showing a court- ordered bad conduct discharge on 17 May 1990 followed by the entry: "CONFIENEMENT [sic] & FORFEITURES REMITTED, PERMANENT CHANGE OF STATION, SOLDIER IS RETURNING TO DUTY." BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that the requested relief is not warranted. 2. The Board noted that the disposition of the applicant's sentence (i.e., the remittance of the unexecuted portion of his sentence) is properly documented in his record, as is the fact that he continued to serve and eventually received an honorable discharge. The Board agreed that the remittance of the unexecuted portion of his sentence, his continued service, and his honorable discharge do not form a basis for removing the properly filed record of his court-martial conviction. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 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 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. 2. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts- Martial, United States, 2008, and the Rules for Courts-Martial contained in the Manual for Courts-Martial. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary, acting through boards of civilians of the executive part of that Military Department. 4. 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. 5. The FBI Criminal Justice Information Services Division website provides instructions for challenging or correcting an FBI Identification Record. The written request should clearly identify the information believed to inaccurate or incomplete and should include copies of any available proof or supporting documentation to support the claim. Requests may be submitted to the FBI Criminal Justice Information Services Division, Attention: Correspondence Group, 1000 Custer Hollow Road, Clarksburg, WV 26306. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190003879 3 1