BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090007489 


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 1982 bad conduct discharge (BCD) be upgraded.

2.  The applicant states he is requesting an upgrade of his discharge in order to receive medical benefits.  He states he does not have a job and really needs the benefits.

3.  The applicant provides no additional 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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier on 22 June 1979.  He successfully completed basic and advanced individual training and in October 1979 he was assigned to a maintenance company in Germany.  By December 1980 he had been promoted to pay grade E-4.

3.  On 9 November 1981, the applicant was tried and found guilty pursuant to his pleas by a special court-martial of larceny and housebreaking.  The applicant was sentenced to a forfeiture of $377.00 pay for 6 months, 6 months in confinement, and a bad conduct discharge.  Headquarters, 1st Armored Division Special Court-Martial Order Number 24, dated 16 February 1982 shows the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 3 months, a forfeiture of $367.00 pay for 3 months, and reduction to the grade of private E-1.  The applicant was confined at the U.S. Army Disciplinary Barracks, at Fort Leavenworth, Kansas.  Subsequently he was placed on excess leave pending disposition of the appellate review.

4.  On 5 August 1982, the U.S. Army Court of Military Review considered the entire record and held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, the findings of guilty and the adjudged sentence were affirmed.

5.  On 22 November 1982, U.S. Disciplinary Barracks, US Army Combined Arms Center, Fort Leavenworth, Kansas published Special Court-Martial Order Number 550.  It indicated that the sentence to a bad conduct discharge, confinement at hard labor for 3 months, a forfeiture of $367.00 pay for 
3 months, and reduction to private (PV1)/E-1, as promulgated in Special Court-Martial Orders Number 24 was finally affirmed.  It further stated that Article 71(c) having been complied with, the bad conduct discharge would be executed.

6.  Accordingly, on 16 December 1982, the applicant was discharged from the Army with a bad conduct discharge pursuant to the sentence of a special court-martial.  

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.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  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.

9.  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.  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.  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.

3.  The applicant’s desire to receive medical benefits is noted.  However, it is not sufficient to mitigate the offenses committed during his military service.

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

____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)                                         AR20090007489



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ABCMR Record of Proceedings (cont)                                         AR20090007489



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