IN THE CASE OF:	

		BOARD DATE:	23 June 2009  

		DOCKET NUMBER:  AR20090005657 


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 bad conduct discharge be upgraded to honorable.

2.  The applicant states that this incident occurred years ago and he believes he deserves a second chance.  He contends that he served his country the best he could, that he was very young, and that he made a serious mistake.  He points out that he is now older and in very bad health and he needs Department of Veterans (DVA) medical benefits.  He further states that since he got out of the military he has not been in trouble with the law and that he has been ordained as a minister.  

3.  The applicant provides four character reference letters; a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 
27 January 1984; and a DD Form 214 (Report of Transfer or Discharge) for the period ending 19 January 1973 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 was born on 24 October 1948.  He enlisted in the Regular Army on 29 January 1971, served as a motor transport operator, and was released from active duty on 19 January 1973.  He enlisted in the Regular Army on 
29 September 1980 for a period of 4 years and trained as a cannon crewman. 

3.  On 15 April 1982, contrary to his pleas, the applicant was convicted by a special court-martial of unlawfully striking another service member and committing an assault upon another service member by cutting him with a knife.  He was sentenced to be confined for 4 months, to forfeit $367 for 4 months, to be reduced to E-1, and to be discharged with a bad conduct discharge.  The convening authority approved the sentence on 14 June 1982.

4.  The U.S. Army Court of Military Review is not available.  However, a DA Form 2-2 (Insert Sheet to DA Form 2-1/Record of Court-Martial Conviction) states that on 14 July 1983 the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

5.  The applicant was discharged with a bad conduct discharge on 27 January 1984 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served a total of 5 years and 10 days of total active service with 100 days of lost time due to confinement.   

6.  In support of his claim, the applicant provided four character reference letters from a pastor, an official at the local police department, a previous employer, and a reverend.  They attest that the applicant is well respected and that he is a mentor, a community leader, an outstanding citizen, and was a dedicated employee.   

7.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

8.  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.  

9.  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.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  The applicant was 22 years old when he initially enlisted in the Regular Army and he was 33 years old when he committed the special court-martial offenses. 

2.  A discharge is not upgraded for the purpose of obtaining DVA benefits.
 
3.  Good post service conduct alone is normally not a basis for upgrading a discharge.

4.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

5.  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, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

6.  The applicant's record of service included one special court-martial conviction and 100 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

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)                                         AR20090005657





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ABCMR Record of Proceedings (cont)                                         AR20090005657



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