RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 September 2007
	DOCKET NUMBER:  AR20070003690 


	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 C. Mitrano

Director

Ms. Antoinette Farley 

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Ms. Laverne V. Berry 

Member

Mr. Ronald D. Gant

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, in effect, that his bad conduct discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states, in effect, that he was told that his bad conduct discharge would be automatically upgraded after he separated.  The applicant continues that he has become disabled and needs his discharge upgraded to honorable in order to receive health care at the Department of Veterans Affairs.  

3.  The applicant provides no additional documentary evidence 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 16 August 1979.  He completed basic training and advanced individual training and was awarded the military occupational specialty (MOS) 57E (Laundry and Bath Specialist).  The highest grade the applicant held was private/pay grade E-2. 

3.  The applicant's service records show that on 24 June 1980, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty on or about 18 June 1980.  His punishment consisted of reduction to the rank of private/pay grade E-1 (suspended until 2 November 1980) and 14 days of extra duty. 

4.  On 17 December 1980, the applicant was punished under Article 15, UCMJ, for failing to go to his appointed place of duty on or before 4 December 1980.  His punishment consisted of a forfeiture of $130.00 pay per month for one month, reduction to the rank of private/pay grade E-1 (suspended until 26 April 1981), 14 days of extra duty, and 14 days of restriction.  
5.  On 12 March 1981, the applicant was punished under Article 15, UCMJ, for failing to go to his appointed place of duty on or about 7 March 1981.  His punishment consisted of a forfeiture of $106.00 pay per month for one month, reduction to the rank of private/pay grade E-1, and 14 days of extra duty.  

6.  General Court-Martial Order Number 32, dated 8 June 1981 shows the applicant was found guilty on 27 April 1981, of larceny of government property on or about 27 September 1980 and one specification of housebreaking.  The applicant was sentenced to confinement for 3 years, reduction to the rank of private/pay grade E-1, and a bad conduct discharge.  

7.  On 18 August 1981, United States Army Court of Military Review affirmed the findings and sentence in the case.  

8.  Department of the Army, United States Disciplinary Barracks United States Army Combined Arms Center, Fort Leavenworth, Kansas General Court-Martial Order Number 789, dated 24 November 1981, announced the applicant's sentence had been affirmed, the provisions of Article 71c had been complied with, and that the bad conduct discharge would be duly executed.  The Order further states that the applicant would be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas, and the confinement will be served therein, or elsewhere as competent authority may direct.

9.  Department of the Army, United States Disciplinary Barracks Order Number 
8-02, dated 13 January 1982, shows the applicant was discharged on 19 January 1982 under the provisions of Army Regulation 635-200 (Personnel Separations) and issued a Bad Conduct Discharge Certificate.  

10.  The applicant's DD Form 214 shows he was discharged under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) on 19 January 1982, with a bad conduct discharge.  His DD Form 214 also shows that during this period of enlistment he completed 1 year, 8 months, and 11 days of active military service with 261 days of lost time due to confinement.

11.  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.

12.  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.

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

14.  Army Regulation 635-200, 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 (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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his bad conduct discharge should be upgraded to a general under honorable conditions discharge because he was informed that his discharge would be automatically upgraded 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 direct any changes if it is determined that the characterization of service or the reason for discharge were either improper or inequitable.

3.  The ABCMR does not upgrade discharges solely for the purpose of making an applicant eligible for Veterans Benefits.

4.  Accordingly, the type of discharge directed and the reason for discharge are appropriate considering all the facts of the case.

5.  The applicant's record of service included three non-judicial punishments for failing to go to his appointed place of duty.  The applicant's record also shows he was tried and convicted by a general court-martial on 27 April 1981, of larceny on or about 27 September 1980 and of housebreaking.  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.  

6.  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.

7.  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.

8.  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

_JEA___  __RDG___  _LVB____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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. Anderholm__
          CHAIRPERSON
INDEX

CASE ID
AR20070003690
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.