IN THE CASE OF:	  

		BOARD DATE:	  18 September 2008

		DOCKET NUMBER:  AR20080006038 


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, in effect, that his Bad Conduct Discharge (BCD) be upgraded.  

2.  The applicant states, in effect, that he desires an upgrade of his BCD in order for him and his family to qualify for benefits.  He states that he regrets his mistakes and has been haunted by his BCD for the past 22 years.  He now requests an upgrade in order to allow him to receive veterans benefits.    

3.  The applicant provides a self-authored letter and refers to medical records outlining his medical conditions that are maintained in Tennessee in support of his 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 he enlisted in the Regular Army and entered active duty on 5 January 1983, and was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in Item 9 (Awards and Decorations), that he earned the Army Service Ribbon and Expert Marksmanship Qualification Badge with Rifle and Hand Grenade Bars during his active duty tenure.  Item 18 (Appointments and Reductions) shows he was initially advanced to private/E-2 (PV2) on 5 July 1983, and that this is the highest rank he attained while serving on active duty.  It also shows he was initially reduced to private/E-1 (PV1) on 5 March 1984, and that he was subsequently advanced back to PV2 and reduced to PV1 on three other occasions between 
1 October 1984 and 27 October 1985.

4.  The applicant's record reveals an extensive disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions between 5 March 1984 and 13 November 1985, and his conviction by a Special Court-Martial (SPCM) on 30 December 1985.  

5.  On 30 December 1985, a SPCM found the applicant guilty, pursuant to his pleas, of violating Article 92, Article 108 and Article 134 of the UCMJ as follows:  Article 92- by wrongfully possessing a hand grenade; Article 108 - by wrongfully selling an explosive device to a Korean foreign national; and Article 134 - by wrongfully buying one grenade.  The resulting sentence approved by the SPCM convening authority was a forfeiture of $100.00 per month for 2 months, confinement for 2 months, and a BCD.  

6.  On 12 May 1986, the United States Army Court of Military Review, in the interest of judicial economy, set-aside findings of guilty of Charge 1, and its specification was dismissed, and affirmed the remaining guilty findings.  The court after reassessing the sentence based on the error noted and the entire record, affirmed the sentence in the applicant's case. 

7.  SPCM Order Number 128, issued by Headquarters, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky, dated 24 June 1986, directed, Article 71(c) of the UCMJ having been complied with, that the BCD portion of the applicant's sentence be duly executed.  On 22 July 1986, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed a total of 3 years, 4 months, and 22 days of creditable active military service, and that he accrued 58 days of time lost as a result being absent without leave (AWOL) from 6 through 16 December 1984, and being in confinement from 
30 December 1985 through 14 February 1986.    
8.  On 11 January 1989, after carefully reviewing the applicant's entire military service record and the issues and evidence submitted by the applicant, the Army Discharge Review Board (ADRB) concluded the applicant's discharge was proper and equitable, and it voted to deny the applicant's request for an upgrade of his discharge.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates, in pertinent part, that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

10.  Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is sorry for his mistakes and has lived with the BCD for the past 22 years, and that the discharge should now be upgraded so he can receive veteran's benefits was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.   By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ, 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.

3.  The evidence of record shows that in addition to the SPCM conviction that resulted in the applicant's BCD, he also had a disciplinary record that included his acceptance of NJP on four separate occasions for multiple disciplinary infractions.  Given the gravity of the offenses that resulted in his SPCM conviction and BCD, and based on his prior disciplinary history, there is an insufficient evidentiary basis to support clemency in this case solely based on the applicant's post service conduct and/or need for benefits.  

4.  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

___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 that 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.

ABCMR Record of Proceedings (cont)                                         AR20080006038



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ABCMR Record of Proceedings (cont)                                         AR20080006038



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