IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080006601 


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 be upgraded. 

2.  The applicant states, in effect, that his court-appointed lawyer told him that he would receive a general discharge per his agreement to separate from the Army. He did not receive the discharge he was supposed to have received, and that he found this out when he requested a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He states that he has been unable to work for almost 3 years, and is currently a full-time student.  Additionally, he states that he has used all of his options for assistance with his medical situation, and that he sought help from the Department of Veterans Affairs (DVA).  Further, he states that he was a good Soldier, but he had a drug problem and he was in trouble a couple of times, instead of receiving help, he was jailed and told the Army did not want to deal with him.  He also states that he was 21 years old at the time and had bad legal counsel throughout his court proceedings, and that before he knew what happened, he was being discharged.  He also claims that his counsel assured him that he would receive a general discharge if he would agree to admit his guilt and leave.  He also states that he is not denying that he was wrong, and feels that the punishment fit the crime; however, he should not have agreed to leave with a bad conduct discharge.  However, he was young and he was unaware of the repercussions of the discharge.  Additionally, he states that he feels that he was unjustly labeled with a bad conduct discharge, and he is begging for help with his situation for the sake of his son and himself.  

3.  The applicant provides a two-page, self-authored statement, dated 19 March 2008; his Spring 2008 student schedule from Clark State Community College; two pages of medical-related documents; two radiology reports, dated 
28 February 2006; and two radiology reports, dated 15 March 2006 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 military records show that he enlisted in the Regular Army on 2 July 1986.  He completed initial entry training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  He departed for a tour in Germany on 26 October 1986, and was assigned to the 6th Battalion, 502nd Infantry Regiment, Berlin Brigade.

3.  On 10 September 1987, a DA Form 4126-R (Bar to Reenlistment Certificate) was imposed on the applicant.  Item 8 (Record of Nonjudicial Punishment [NJP]) of this document essentially shows the applicant accepted NJP under Article 15 of the Uniform Code of Military Justice (UCMJ) on 19 June 1987 for failing to report, and that his punishment consisted of extra duty for 14 days and restriction for 14 days.  He also accepted NJP under Article 15 of the UCMJ on 2 July 1987 for wrongful use of illegal drugs, with his punishment consisting of a reduction in rank from private first class/E-3 to private/E-1, a forfeiture of $329.00 pay per month for 2 months (with a forfeiture of $164.00 pay per month for 2 months suspended until 2 January 1988) extra duty for 45 days, and restriction for 
45 days.  Additionally, the applicant accepted NJP under Article 15 of the UCMJ on 4 August 1987 for violating a lawful general regulation by wrongfully having in his possession a knife with a blade in excess of 3 inches.  His punishment for this offense was a forfeiture of $153.00, extra duty for 14 days, and restriction for 
14 days.  All punishment was suspended. 

4.  On 11 January 1988, the applicant was convicted by a summary court-martial of wrongfully using marijuana/hashish between on or about 21 September and 
21 October 1987, and for breaking restriction on or about 19 December 1987.  He was sentenced to 20 days in confinement, and he was placed in military confinement on 11 January 1988.  On 27 January 1988, he was released from military confinement.

5.  On 22 March 1988, the applicant's commanding officer recommended that his bar to reenlistment remain in effect.

6.  On 27 May 1988, the applicant was convicted, contrary to his pleas, by a special court-martial for wrongfully using marijuana/hashish between on or about 5 January 1988 and on or about 5 February 1988.  He was sentenced to a forfeiture of $447.00 pay per month for 1 month, confinement for 2 months, and to be discharged with a bad conduct discharge.  The applicant's sentence was approved and except for the bad conduct discharge, was ordered to be executed. The applicant was also placed in military confinement.  On 16 July 1988, he was released from military confinement.  On 20 July 1988, he was placed on involuntary excess leave pending appellate review of his record of trial.

7.  On 18 October 1988, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.

8.  On 23 March 1989, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial order, and was issued a Bad Conduct Discharge Certificate.  

9.  The applicant essentially stated that his court-appointed lawyer told him that he would receive a general discharge per his agreement to separate from the Army.  He also stated that when he agreed to separate from the Service, which his court martial papers do not reflect, he did not receive the discharge he was supposed to have received, and that he found this out when he requested a copy of his DD Form 214.  He further stated that he has been unable to work for almost 3 years, and is currently a full-time student.  Additionally, he stated that he has used all of his options for assistance with his medical situation, and that he sought help from the DVA.  Further, he stated that he was a good Soldier, but that he had a drug problem for which he was in trouble a couple of times, but that instead of receiving help, he was jailed and told that the Army did not want to deal with him.  He also stated that he was 21 years old at the time and had bad legal counsel throughout his court proceedings, and that before he knew what happened, he was being discharged.  He also claimed that his counsel assured him of a general discharge if he would agree to admit his guilt and leave, and being young and unknowing of the repercussions from his agreement, he was released from duty.  He also stated, in pertinent part, that he is not denying that he was wrong, and feels that the punishment fit the crime; however, he should have never agreed to leave with a bad conduct discharge.  He reiterated that he was a good Soldier, and that his record should reflect this fact and that he served in an occupied city, risking his life more than he can count.  Additionally, he stated that he feels that he was unjustly labeled with a bad conduct discharge, and begged for help with his situation for the sake of his son and himself. 

10.  The applicant's military records contained a DA Form 4465 (Alcohol and Drug Abuse Prevention and Control Program [ADAPCP] Client Intake/Screening Record) which show the applicant was enrolled in the ADAPCP after being referred by his commanding officer.  His military records also show that he was admitted to a hospital on 1 May 1988 for acute alcohol intoxication, and was released on 2 May 1988.  Additionally, on 6 June 1988, a social work officer essentially noted that the applicant denied that he abused hashish, and that he just experimented with it twice.  This social worker also noted that the applicant did not appear to want to change his behavior regarding drug usage.  Additionally, the applicant completed a social history questionnaire, in which he essentially stated in his opinion, he did not have a drug or alcohol problem.   

11.  Title 10, United States Code, section 1552, as amended does not permit any redress by this Board that would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.

12.  Paragraph 3-7a of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.

13.  Paragraph 3-7b of the same regulation also 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded.

2.  While the applicant contends that his court-appointed lawyer told him that he would receive a general discharge per his agreement to separate from the Army, the applicant provided no evidence whatsoever to support this contention.

3.  While the applicant contends that he was a good Soldier, the evidence of record clearly shows he repeatedly accepted NJP under Article 15 of the UCMJ for multiple offenses, and that he had a bar to reenlistment imposed on him.  Additionally, he was twice convicted by a court-martial.  As a result, his actions clearly were not consistent with those expected of good Soldiers.

4.  The fact that the applicant essentially stated that he sought help from the DVA was also noted.  However, the DVA administers its benefit programs under its own regulations and policies, and granting DVA benefits is not within the purview of the ABCMR.  The fact that the applicant is seeking DVA benefits does not constitute that an error or injustice occurred in his discharge.

5.  The fact that the applicant is trying to better himself through college was noted.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

6.  The applicant’s entire record of service was considered; however, the fact that the applicant was tried and convicted by a summary court-martial and accepted NJP under Article 15 of the UCMJ on multiple occasions before he was convicted by a special court-martial clearly shows that the applicant did not meet the 
standards of acceptable conduct and performance of duty for Army personnel.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  

7.  After a review of the available records, the Board found no cause for clemency and an insufficient basis upon which to base an upgrade of the applicant’s bad conduct discharge to an honorable or general discharge.  In view of the foregoing, there is no basis for upgrading the applicant's discharge.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080006601



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ABCMR Record of Proceedings (cont)                                         AR20080006601



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