BOARD DATE:	  27 August 2009

		DOCKET NUMBER:  AR20080017062 


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 to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that it has been almost ten years since his discharge and he would like to be able to obtain medical benefits from the Department of Veterans Affairs (VA) for his migraines, Hyperlipidemia (High Cholesterol) and other mental health issues he suffers from.  

3.  The applicant provides no documentation 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 initially enlisted in the Kentucky Army National Guard (KYARNG) and served during the period 21 December 1989 through 2 February 1993.

3.  On 3 February 1993, the applicant enlisted in the RA and entered active duty. He was trained in and awarded military occupational specialty (MOS) 19D (Cavalry Scout).  

4.  On 27 August 1997, a General Court-Martial (GCM) found the applicant guilty of violating the following articles of the Uniform Code of Military Justice (UCMJ) by committing the offenses indicated:  Article 86, by being absent without leave (AWOL) from on or about 13 February through on or about 30 May 1997;  Article 134 (3 specifications) by wrongfully using a military identification card with the intent to defraud on or about 27 May 1997, writing a bad check in the amount of $150.00 on or about 15 May 1995, and wrongfully and without authority wearing a Parachutist Badge on his uniform between on or about 29 September 1995 and on or about 13 February 1997; and three specifications of Article 123a by writing bad checks between on or about 9 December 1995 and on or about 31 December 1995, writing a bad check on or about 20 January 1996, and writing bad checks between on or about 3 February and on or about 23 April 1996.  The resultant sentence was a reduction to the grade of private/E-1, 6 months confinement (credited with 89 days of confinement against the sentence), a forfeiture of all pay and allowances, and a BCD.

5.  On 29 May 1998, the United States Army Court of Criminal Appeals, after consideration of the entire record, held that the findings of guilty and sentence approved by the convening authority in the applicant's case were correct in law and fact.  Accordingly, it affirmed the guilty findings and the sentence.  

6.  On 13 November 1998, GCM Order Number 172, issued by Headquarters, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky, directed that, Article  71(c) of the UCMJ having been complied with, and the sentence having been affirmed, that the BCD portion of the applicant’s sentence be duly executed.  On 17 December 1998, the applicant was discharged accordingly.

7.  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 discharge (DD) or BCD.  It stipulates, in pertinent part, that a Soldier will be given a DD or 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 discharge is ordered duly executed.  
8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that it has been over 10 years since his discharge and that he would like to obtain VA benefits for his health issues was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses with which he was charged.  Conviction and discharge were effected in accordance with applicable laws and regulation and his rights were protected throughout the court-martial process.  

3.  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.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that his service was not sufficiently meritorious to support clemency given his extensive disciplinary history and the seriousness of the offenses for which he was convicted.  

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)                                         AR20080017062



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ABCMR Record of Proceedings (cont)                                         AR20080017062



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