RECORD OF PROCEEDINGS


	IN THE CASE OF:	  .


	BOARD DATE:	  19 September 2007
	DOCKET NUMBER:  AR20070003564 


	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.


Ms. Catherine Mitrano

Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Ronald D. Gant

Member

Mr. Rowland C. Heflin

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his bad conduct discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was told that his bad conduct discharge would be automatically upgraded to an honorable discharge six months after his separation from the Army.  The applicant continues that at the end of his service he was in the wrong place at the wrong time and indicates that he is sorry about the mistake he made.  The applicant further states that he needs his discharge upgraded to honorable in order to receive health care at the Department of Veterans Affairs (DAV).  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge) in support of this application. 

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's record shows that he enlisted in the Regular Army on 27 December 1977.  He completed basic training and advanced individual training and was awarded the military occupational specialty (MOS) 13B (Cannon Crewman).  The highest grade the applicant held was specialist/pay grade E-4. 

3.  The applicant's service records reveal a disciplinary history that shows on 25 February 1981, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without authority (AWOL) during the period 21 January through 6 February 1981.  His punishment consisted of a forfeiture of $100.00 pay per month for one month, reduction to the rank of private first class (suspended for a period of 90 days), and 11 days of extra duty. 

4.  On 24 April 1981, the applicant was punished under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 9 April 1981, 11 April 1981, and for being disrespectful to his superior non-commissioned officer on 10 April 1981.  His punishment consisted of a forfeiture of $75.00 pay per month for one month, reduction to the rank of private first class (suspended for a period of 90 days), and 14 days of extra duty.  

5.  On 16 June 1981, the applicant was punished under Article 15, UCMJ, for willfully disobeying a lawful order by his superior non-commissioned officer on 16 June 1981.  His punishment consisted of a forfeiture of $100.00 pay per month for one month, reduction to the rank of private/pay grade E-2, and 14 days of extra duty.  The applicant's record shows he appealed the action which was denied on 18 June 1981.
6.  General Court-Martial Order Number 17, dated 12 March 1982, shows the applicant was found guilty on 17 December 1981, of rape on or about 26 September 1981; two specifications of assault on or about 26 September 1981; and two specifications of communicating threats to two enlisted Soldiers on or about 26 September 1981.  The applicant was sentenced to forfeiture of $450.00 per month for one year, confinement for 3 years, reduction to the rank of private/pay grade E-1, and a bad conduct discharge.  

7.  On 7 September 1982, the U. S. Army Court of Military Review affirmed the finding and sentence as adjudged.  

8.  On 27 September 1982, the applicant acknowledged receipt of the decision of the United States Army Court of Military Review and right to petition for further review within sixty days.  

9.  Department of the Army, United States Disciplinary Barracks United States Army Combined Arms Center, Fort Leavenworth, Kansas General Court-Martial Order Number 23, dated 7 January 1993, announced the applicant's sentence had been affirmed, and the provisions of Article 71c had been complied with, the bad conduct discharge was to be duly executed.  

1.  Department of the Army, United States Disciplinary Barracks Order Number 12-10, dated 19 January 1983, shows the applicant was discharged on 26 January 1983 under the provisions of Army Regulation 635-200 (Personnel Separations) and issued a Bad Conduct Discharge Certificate.  

11.  The applicant's DD Form 214 shows he was discharged under the provisions of chapter 11 of Army Regulation 635-200 on 26 January 1983, with a bad conduct discharge as a result of court-martial.  His DD Form 214 also shows that during this period of enlistment he completed 3 years, 8 months, and 17 days of active military service with 396 days of lost time due to AWOL and confinement.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect, at the time established policy and procedures for separating members with a dishonorable or bad conduct discharge.  The regulation provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  It further provided the appellate review must be completed and the affirmed sentence ordered duly executed.


13.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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.

14.  Army Regulation 635-200, paragraph 3-7a, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

15.  Army Regulation 635-200, paragraph 3-7b, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

16.  There is no evidence in the available records which shows the applicant was advised that his bad conduct discharge would be automatically upgraded six months after his discharge.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his bad conduct discharge should be upgraded to an honorable discharge because he was informed that his discharge would be automatically upgraded six months after he was discharged and wants access to Veterans Benefits. 

2.  The U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The ABCMR will upgrade a discharge only if it is determined that the characterization of service or the reason for discharge were either improper or inequitable.

3.  The type of discharge directed and the reason for discharge are appropriate considering all the facts of the case.

4.  The applicant's record of service included three non-judicial punishments for being AWOL and/or being disrespectful.  The applicant's record also shows he was tried and convicted by a general court-martial on 17 December 1981, for rape, assault and communicating threats.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the bad conduct discharge appropriately characterizes the misconduct for which the applicant was convicted.  

5.  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.

6.  After review of the applicant's entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge nor has his post service conduct merited an upgrade.  As a result, there is insufficient basis for a grant of clemency in the form of an honorable or a general discharge.

7.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for Veteran's Benefits.

8.  The Manual for Courts-Martial, in effect at that time, shows that the applicant did not receive the maximum punishment for the offenses for which he was convicted.

9.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_RCH__  __JEV___  _RDG____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




_James E. Vick___
           CHAIRPERSON


INDEX

CASE ID
AR2007003564
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
83/01/26
DISCHARGE AUTHORITY
AR 635-200 Ch 11
DISCHARGE REASON
BCD
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano/Director
ISSUES         1.

2.

3.

4.

5.

6.