IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090009648 


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, an upgrade of his bad conduct discharge (BCD). 

2.  The applicant states, in effect, there was no error or injustice related to his discharge, he just desires to receive an upgrade in order to receive medical and dental assistance.  

3.  The applicant provides a self authored statement and DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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’s record shows he enlisted in the Regular Army (RA) and entered active duty on 16 June 1981.  He was trained in and awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  His record documents no acts of valor or significant achievement.

3.  On 7 April 1983, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order.  His punishment for this offense was a forfeiture of $150.00, reduction to private/E-2 (suspended for 90 days to 6 July 1983) and 14 days extra duty.

4.  On 9 March 1984, a General Court-Martial (GCM) found the applicant guilty, pursuant to his pleas, of two specifications of violating Article 128 of the UCMJ by committing assault upon another Soldier on or about 18 February 1984, and by striking another Soldier on or about 30 January 1984; and of violating Article 134 of the UCMJ by wrongfully communicating a threat to another Soldier that he would injure her on or about 30 January 1984.  The resultant sentence from the Military Judge was a reduction to private/E-1 (PV1), forfeiture of all pay and allowances, confinement for 15 months, and a dishonorable discharge (DD).  

5.  On 26 March 1984, the GCM convening authority approved only so much of the sentence that provided for a BCD, confinement at hard labor for 1 year, forfeiture of all pay and allowances, and reduction to PV1.  

6.  On 4 May 1984, the United States Army Court of Military Review, after consideration of the entire record, held that the findings of guilty and sentence approved by the convening authority in the applicant's case were correct in law and fact.  Accordingly, it affirmed the guilty findings and the sentence.  

7.  On 26 September 1984, GCM Order Number 422, issued by United States Army Correctional Activity, Fort Riley, Kansas, directed, that, Article 71(c) of the UCMJ having been complied with and the sentence having been affirmed, directed the execution of the sentence.  

8.  On 21 December 1984, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued upon his separation shows he was separated under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), as a result of a 
court-martial and that he received a BCD.  This document also confirms he completed a total of 2 years and 8 months of creditable active military service.  


9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a BCD 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.  

10.  Paragraph 3-7a of the same regulation provides that an HD 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.  Paragraph 3-7b provides that a general discharge (GD) 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 (HD).  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

11.  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.  The applicant's request that his BCD discharge be upgraded so that he may obtain medical and dental assistance was carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief. 

2.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.  The applicant's trial by court-martial was warranted by the gravity of the offense for which she was 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.


3.  The applicant is advised that this Board does not upgrade discharges for the purpose of assisting applicants in obtaining benefits from other agencies.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and in the absence of any compelling mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

4.  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.

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)                                         AR20090009648



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ABCMR Record of Proceedings (cont)                                         AR20090009648



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