IN THE CASE OF:	  

		BOARD DATE:	        10 MARCH 2009

		DOCKET NUMBER:  AR20080018082 


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 that his 1990 bad conduct discharge be upgraded.

2.  The applicant states he would like to have his discharge upgraded so he can use Department of Veterans Affairs (VA) facilities.  He states his discharge should be upgraded based on five continuous Army Good Conduct Medals for honorable active service.

3.  The applicant provides a copy of his 1990 DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 entered active duty as a Regular Army enlisted Soldier on 9 June 1972.  He served three tours of duty in Korea and one in Germany.  On 5 October 1983 he was promoted to the rank of staff sergeant/E-6.  The applicant’s final enlistment began on 25 October 1985 when he reenlisted for a term of 4 years.  On 30 September 1986, during his third tour of duty in Korea, he was reduced to the rank of sergeant/E-5 as a result of punishment under Article 15 of the Uniform Code of Military Justice for four counts of failing to go to his appointed place of duty and for being off compound without an authorized pass.

3.  On 26 July 1988, at Camp Casey, Republic of Korea, the applicant was tried and found guilty pursuant to his pleas by a general court-martial of driving while intoxicated, allowing a person without a license to drive a military vehicle, consuming alcoholic beverages in a military vehicle, transporting open containers of alcoholic beverages in a military vehicle, obstruction of justice, conspiracy to obstruct justice, wrongfully appropriating a military vehicle, and aggravated assault (vehicle struck a Korean pedestrian).  Headquarters, 2nd Infantry Division, General Court-Martial Order Number 56, dated 9 September 1988, shows he was sentenced to a bad conduct discharge, 9 months of confinement, and reduction to the rank/grade of private/E-1.  The convening authority approved the sentence.  The applicant was subsequently confined at the U.S. Army Correctional Activity at Fort Riley, Kansas, until 3 March 1989 when he was placed on excess leave pending disposition of appellate review.  The applicant’s guilty plea was upheld by the U.S. Army Court of Military Review on 27 July 
1989.

4.  On 6 November 1989, U.S. Army Correctional Activity, Fort Riley, published General Court-Martial Order Number 855.  It indicated that the sentence to a bad conduct discharge, confinement for 9 months, and reduction to private/E-1, as promulgated in General Court-Martial Order Number 56 was finally affirmed.  It further stated that Article 71(c) having been complied with, the bad conduct discharge would be executed and that that portion of the sentence pertaining to confinement had been served.

5.  Accordingly, on 12 April 1990, the applicant was discharged from the Army with a bad conduct discharge in the rank of private/E-1 pursuant to the sentence of a general court-martial.  He completed 17 years, 2 months, and 24 days of creditable active service.

6.  Records available to the Board indicate the applicant’s personal decorations and badges included five awards of the Army Good Conduct Medal with the last award issued in 1987, three Army Achievement Medals, an Air Assault Badge, and a Driver Badge.
7.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1(b) of the regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review was required to have been completed and the affirmed sentence ordered duly executed.

8.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the 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.

9.  Army Regulation 635-200, paragraph 3-7a, 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.

10.  Army Regulation 635-200, paragraph 3-7b, 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.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant’s desire to receive VA benefits and his argument that his discharge should be upgraded because of his five awards of the Army Good Conduct Medal has been noted.  However, his awards and prior honorable service is not sufficient to mitigate the offenses committed during his military service which resulted in his conviction by a special court martial.  His desire to utilize VA facilities is not a basis to upgrade his discharge.
3.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations.  Therefore, there is no legal basis for granting the applicant's request for relief.

4.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.



      _________________________
                 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)                                         AR20080018732



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018082



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1