IN THE CASE OF:	  

		BOARD DATE:	       12 March 2009

		DOCKET NUMBER:  AR20090000804 


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 an upgrade of his bad conduct discharge.

2.  The applicant states he had two previous honorable discharges and was given a bad conduct discharge for his third enlistment.  He had been drinking at the time and got into a fight with another individual and that prior to this incident, he did not have any problems.  He adds that he has submitted a service-connected claim for an injury that occurred during his military service and that, in effect, the bad conduct discharge is affecting his entitlements.

3.  The applicant provides a copy of his honorable certification of military service, dated 1 September 1993, 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 records show he enlisted in the Regular Army for a period of 3 years on 28 July 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 17K (Ground Surveillance Radar Crewman).  He served in Germany from 22 October 1977 to 22 June 1980, attained the rank/grade of specialist four (SP4)/E-4, and was honorably released from active duty on 27 July 1980 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.

3.  After a short break in service, the applicant executed a 3-year enlistment contract in the Regular Army on 16 July 1981.  He was subsequently reassigned to Germany on 25 September 1982.  While in Germany, he executed a 9-month extension on 12 July 1984 and a 3-year reenlistment on 29 March 1985. 

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 21 October 1983, for failing to go at the time prescribed to his appointed place of duty on four separate occasions between on or about 8 and 17 October 1983.  His punishment consisted of reduction to specialist four (SP4)/E-4 (suspended until 19 April 1984), a forfeiture of $444.00 pay for one month, 30 days of restriction, and 30 days of extra duty; and 

	b.  On 15 April 1986, for being absent without leave (AWOL) during the period from on or about 8 April 1986 through on or about 14 April 1986.  His punishment consisted of reduction to private first class (PFC)/E-3 and a forfeiture of $194.00 pay for month.  He appealed his punishment to the next higher authority; however, his appeal was denied.

5.  On 11 September 1987, the applicant appeared before a General Court-Martial at Fort Sill, Oklahoma, and pled guilty to one specification of assault upon another Soldier on or about 30 May 1987 with a means likely to produce death or grievous bodily harm [pled guilty by exception and substitution; pled only to “means likely” in accordance with a plea agreement]. The Court sentenced him to a reduction to private (PV1)/E-1, a forfeiture of $400.00 pay per month for
20 months, confinement for 20 months, and a bad conduct discharge.

6.  On 22 October 1987, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for 12 months, forfeiture of $400.00 pay per month for 20 months, and reduction to PV1, and 
except for the bad conduct discharge, ordered the sentence executed.  The 
record of trial was forwarded to The Judge Advocate General of the Army for review by the Army Court of Military Review.

7.  On 31 December 1987, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  On 10 May 1988, the U.S. Court of Military Appeals for the Armed Forces denied the applicant's petition for grant of review.

9.  Headquarters, U.S. Army Correctional Activity, Fort Riley, Kansas, General Court-Martial Order Number 449, dated 13 July 1988, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

10.  The applicant was discharged from the Army on 28 July 1988.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), as a result of court-martial, with a bad conduct discharge.  This form further shows the applicant completed a total of 9 years, 3 months, and 3 days of creditable military service and he had 289 days of lost time.

11.  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.  

12.  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.


13.  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 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 contends that his bad conduct discharge should be upgraded.

2.  The applicant’s trial by a General Court-Martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  The applicant’s discharge accurately reflects his military service at that time.

3.  After a review of the applicant’s entire record of service including his prior enlistments, two instances of nonjudicial punishment, one instance of AWOL, and his court-martial, it is clear his overall service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge to a general discharge or an honorable discharge.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires specific medical benefits, he should contact a local/regional Department of Veterans Affairs office.  Those individuals can best advise a former service member as to the criteria to process service-connected claims. 

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.


															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)                                         AR20090000804



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ABCMR Record of Proceedings (cont)                                         AR20090000804



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