IN THE CASE OF:	

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090011637 


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 a general under honorable conditions discharge.

2.  The applicant states, in effect, that he desires an upgrade of his discharge to be eligible for Department of Veterans Affairs (VA) medical benefits and to aid in his search for employment.  He contends that it has been more than 20 years since the dishonorable discharge and in essence it has been a hindrance in finding adequate employment.

3.  The applicant provides the DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 enlisted in the Regular Army (RA) on 19 July 1979 and was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  The applicant was convicted twice by special courts-martial:

	a.  Headquarters, Boeblingen Community Command (Provisional) Special Court-Martial Order Number 10, dated 29 September 1980, shows that on 
20 August 1980 the applicant was found guilty of:

* Charge I:  Violation of Article 128 - on or about 27 June 1980, unlawfully
	strike a person in the mouth with his hand.

* Charge II:  Violation of Article 134 - on or about 27 June 1980, break
	restriction 

	b.  On 20 August 1980, the convening authority approved 45 days
confinement at the U.S. Area Confinement Facility, Mannheim, Germany.

	c.  Headquarters, U.S. Army Infantry Center and Fort Benning, Special Court Martial Order Number 45, dated 2 April 1982 shows that on 22 January 1982  the applicant was found guilty of:

* Charge I:  Violation of Article 134 - on or about 14 November 1981,
	break restriction 

* Charge II:  Violation of Article 90 - on or about 15 November 1981,
	willfully disobey a lawful order from his superior commissioned officer 

   d.  Headquarters, U.S. Army Infantry Center and Fort Benning, Special Court Martial Order Number 45, dated 2 April 1982 the convening authority’s final action stated the affirmed sentence was a bad conduct discharge, forfeiture of $367.00 pay for a term of 6 months, and 6 months confinement and hard labor at a military confinement facility.

4.  On 13 December 1982, the applicant was discharged, pursuant to his sentence by special court-martial, with a bad conduct discharge.  He had completed a total of 2 years, 11 months, and 27 days of creditable active service with 144 days of lost time.

5.  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.

6.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-11, provides 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. 

7.  Army Regulation 635-200 states that a Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the Uniform Code of Military Justice (UCMJ), Article 15.  Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge.  An honorable discharge may be furnished when disqualifying entries in the Soldier’s military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service.  

8.  Army Regulation 635-200 states, in pertinent part, a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.  

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his discharge was carefully considered and not supported by the evidence in this case.

2.  The applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The offenses of which he was convicted are serious and his punishment was not excessive.  

3.  Based on his record of indiscipline, which includes conviction by two special courts-martial, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to a general 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)                                         AR20090011637





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ABCMR Record of Proceedings (cont)                                         AR20090011637



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