IN THE CASE OF:	

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080012906 


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 to a general discharge so that he can obtain health benefits and a “GI” loan for his home.

2.  The applicant states, in effect, that his military record was spotless before he made many bad choices due to his divorce and separation from his sons in the United States.

3.  The applicant provides no additional documentation in support of his case.

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 personnel record shows he enlisted in the Regular Army on 11 February 1986.  He completed the necessary training and was awarded the military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  His highest pay grade held was E-4.

3.  On 9 December 1988, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana.  His punishment consisted of reduction to pay grade E-1, a forfeiture of $335.00 per month for 2 months, 45 days of restriction, and  
45 days of extra duty.

4.  On 14 April 1989, pursuant to his guilty pleas, the applicant was convicted by a general court-martial for one specification of possession of 22.91 grams of hashish and 5.76 grams of marijuana; three specifications for violating a general regulation by possessing a switchblade, a smoking device, and not having proper documents to cross a border; one specification for use of marijuana; and one specification for disobeying a lawful order by breaking restriction.  His sentence consisted of a bad conduct discharge from the service, a forfeiture of all pay and allowances, and confinement for 1 year.  His sentence was approved and except for the part extending to the bad conduct discharge, was executed.

5.  On 6 June 1989, the applicant's bad conduct discharge was approved as adjudged, and except for bad conduct discharge was ordered to be executed.

6.  On 29 August 1989, the United States Army Court of Military Review (ACMR) affirmed the court-martial’s finding of guilty and the sentence.

7.  Headquarters, United States Army Correctional Brigade, Fort Riley, General Court-Martial Order Number 925, dated 4 December 1989, shows that the sentence was finally affirmed.  Article 71(c) having been complied with, the convening authority ordered the bad conduct discharge to be executed.

8.  On 15 December 1989, the applicant was discharged as a result of a court-martial and issued a Bad Conduct Discharge Certificate.  He had completed  
3 years, 1 month, and 20 days of Net Active Service This Period.  He accrued  
267 days of lost time.

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

10.  Court-martial convictions stand as adjudged or as 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 (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.

DISCUSSION AND CONCLUSIONS:

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

2.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  The evidence shows that the applicant’s record was not spotless and he submitted no evidence to support his claim that his many bad choices were due to his divorce and separation from his sons.  As such, there is no basis upon which to support the applicant's request to upgrade his bad conduct discharge to a general discharge.

5.  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 sufficient evidence that would satisfy this requirement or to show clemency is warranted.

6.  Additionally, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.

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)                                         AR20080012906



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ABCMR Record of Proceedings (cont)                                         AR20080012906



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