IN THE CASE OF:	  

		BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090011828 


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 1990 bad conduct discharge be upgraded to a general discharge.

2.  The applicant states that after his court martial he was told by his defense attorney that he would receive a general discharge.  He states he signed some paper work which also listed a general discharge.  He notes that he discovered that his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received a bad conduct discharge after he attempted to obtain medical benefits through the Department of Veterans Affairs.

3.  The applicant provides no additional evidence 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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier on 4 February 1987.  Following completion of training he was assigned to Fort Carson, Colorado, and by April 1988 had been promoted to pay grade E-3.

4.  On 19 September 1989 the applicant was convicted by a special court martial of one specification of being disrespectful in language and deportment toward a noncommissioned officer.  His sentence was a bad conduct discharge and reduction to the grade of private/E-1.

5.  On 2 November 1989 the applicant was placed on involuntary excess leave.

6.  On 5 January 1990 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 was affirmed.

7.  On 19 June 1990 Headquarters, U.S. Army Armor Center and Fort Knox, published Special Court-Martial Order Number 93 indicating that the applicant's sentence to a bad conduct discharge and reduction to private/E-1 as promulgated in Special Court-Martial Order Number 37, Headquarters, Fort Carson and 4th Infantry Division, Fort Carson, Colorado, was finally affirmed.  The order further indicated that Article 71(c) having been complied with, the bad conduct discharge would be executed.

8.  Accordingly, on 6 August 1990 the applicant was discharged from the Army with a bad conduct discharge in the rank of private/E-1 pursuant to the sentence of a special court-martial.  He completed 3 years, 6 months, and 3 days of creditable active service.

9.  Records available to the Board indicate the applicant was not awarded any personal decorations but had been awarded the Army Service Ribbon and qualified with an M-16 and hand grenade.

10.  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.

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 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 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.  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.  The applicant's contention that he was told that he would receive a general discharge or that he signed documents to that effect is not supported by any evidence of record, nor was any provided by the applicant.

3.  A trial by court-martial was warranted by the gravity of the offenses charged.  The 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.

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)                                         AR20090011828



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ABCMR Record of Proceedings (cont)                                         AR20090011828



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