IN THE CASE OF:	  

		BOARD DATE:	  3 March 2009

		DOCKET NUMBER:  AR20080018564 


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 it has been over twenty years since his discharge from the Army.  He also indicates that he was under the impression that he was a veteran and that he would like to take advantage of the Department of the Veterans Affairs (VA) services.

3.  The applicant provides no documentary evidence in support of his request.

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 Regular Army (RA) and entered active duty on 26 August 1981.  He completed basic combat
training and advanced individual training (AIT) at Fort Benning, Georgia.  Upon completion of AIT, he was awarded military occupational specialty 11C 
(Indirect Fire Infantryman).  

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he attained the rank of specialist four (SP4) on 1 September 1983, and that this is the highest rank he attained while serving on active duty.  

4.  On 23 July 1984, the applicant was honorably released from active duty (REFRAD) for the purpose of immediate reenlistment, and on 24 July 1984, he reenlisted for 3 years.  

5.  On 7 May 1985, pursuant to his pleas, a general court-martial (GCM) found the applicant guilty of violating Article 128 of the Uniform Code of Military Justice (UCMJ) by committing aggravated assault on 29 January 1985, and of two specifications of violating Article 112a of the UCMJ by wrongfully possessing some amount of marijuana on 19 November 1984 and on 25 February 1985.  The resultant sentence imposed by the military judge was 20 months of confinement, a forfeiture of all pay and allowances, reduction to PV1 and a BCD.

6.  On 15 July 1985, the GCM convening authority approved the sentence and directed that all but the BCD portion of the sentence be duly executed in Headquarters, 7th Infantry Division and Fort Ord, California, GCM Order 
Number 33.

7.  On 15 July 1985, the applicant was reduced to the rank of private/E-1 (PV1).  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

8.  On 13 September 1985, the United States Army Court of Military Review affirmed the findings of guilty and the sentence in the applicant’s case.  The court also corrected the order by adding the date “15 July 1985” to the action paragraph.

9.  On 23 December 1985, GCM Order Number 773 issued by United States Army Correctional Activity, Fort Riley, Kansas directed that Article 71c of the UCMJ having been complied with, that the BCD portion of the sentence be executed and that the applicant serve his period of confinement at the United States Army Correctional Activity, Fort Riley.

10.  On 22 August 1986, upon completion of his confinement, the applicant was discharged.  The DD Form 214 issued to him at that time shows he was separated under the provisions of chapter 3, Section IV, Army Regulation
635-200 (Personnel Separations), by reason of court-martial and that he received a BCD.  It also shows he had completed a total of 3 years, 8 months and 10 days of creditable active military service.

11.  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 BCD.  It provides, 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his BCD should be upgraded because it has been over 20 years since his discharge from the Army and because he is a veteran who wants to use VA services has been carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record shows the applicant’s trial by court-martial that resulted in his BCD was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  The record further confirms that the applicant was discharged after completion of the entire appellate process and only after his sentence was affirmed by the appropriate appellate court.

4.  Given the applicant's record of undistinguished service during the period in question, and the seriousness of the offenses for which he was convicted, there is an insufficient evidentiary basis to support clemency in this case.

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 evidence that would satisfy this requirement.

6.  The applicant is advised that the administration of VA benefits is not within the purview of this Board.  He should contact a local VA office to determine if he is eligible for any benefits based on his initial period of honorable active duty service from 26 August 1981 to 23 July 1984.  

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)                                         AR20080018564



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ABCMR Record of Proceedings (cont)                                         AR20080018564



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