IN THE CASE OF:	

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090013914 


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 an honorable discharge.  He requests that his pay for pay grade E-6 be reinstated and that he be paid as an E-6 throughout his whole ordeal.

2.  The applicant states there was no valid contract when he reenlisted in 1986.  He states that after spending 10 years in the Army he and his family returned to Wenatchee, WA, but he missed the Army and decided to enlist in the Army again and make the Army a career.  He states his recruiter told him he could have his former grade of E-6 restored and that his family could go with him.  He states that when he reported to Korea he was told he could not get his E-6 rank back and that his family would not be joining him in Korea.  He states he returned to WA on leave and when he returned to Korea he was informed he was being investigated for black marketing.  He states he went to Seoul with a buddy and was arrested for being in an "out of bounds" bar and for black marketing.  The applicant states he feels that the military did not honor his contract.  He states he thinks his time spent at Fort Riley, KS, should be removed from his record and he should be paid as an E-6 throughout his whole ordeal.

3.  He states that since his discharge he had gotten a divorce and subsequently was married and divorced three more times before meeting his current wife.  He states he has had four knee surgeries, a hip replacement, an appendectomy, and throat cancer.  He states he is currently receiving social security disability but he has no health insurance.  He states he feels the Army should help him with his medical expenses.

4.  The applicant provides a statement from his wife, 24 pages from his military personnel records, and a letter from the National Personnel Records Center (NPRC) in St. Louis, MO, 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 military personnel records show he served on active duty in the Regular Army from 2 June 1978 until he was discharged on 30 April 1986.  His primary military occupational specialty (MOS) was 94B (Food Service Specialist) and his secondary MOS was 11B (Infantryman).

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 1 May 1986.  Effective 25 June 1986 he was released from the USAR and on 26 June 1986 he enlisted in the Washington Army National Guard (WAARNG).  On 20 August 1986 he was released from the WAARNG and enlisted in the USAR Delayed Entry/Enlistment Program (DEP) on 21 August 1986 in pay grade E-5.

4.  On 7 October 1986, the applicant enlisted in the Regular Army for a period of 3 years in pay grade E-5.  He enlisted under the Army First Assignment (no training) Enlistment Option for Korea.

5.  On 21 October 1986, the applicant was assigned to the 5th Battalion, 20th Infantry, 2nd Infantry Division, in Korea.

6.  On 16 October 1987, the applicant was tried before a general court-martial.

	a.  He pled guilty and was found guilty of being absent without leave from 1 September 1987 to 18 September 1987.

	b.  He pled guilty and was found guilty of violation of a lawful general regulation by failure to "show and tell" items valued at $3,257.00 on 16 June 1987.

	c.  He pled guilty and was found guilty of violation of a general regulation by purchasing goods for illegal transfer valued at $22,931.00 between 8 December 1986 and 24 May 1987.

	d.  He pled guilty and was found guilty of violation of a general regulation by the illegal transfer of duty-free goods valued at $22,931.00 to unauthorized persons between 8 December 1986 and 24 May 1987.

	e.  His sentence consisted of a reduction to pay grade E-1, confinement for 2 years, and a bad conduct discharge.

7.  On 9 November 1987, the convening authority approved the sentence but the execution of that part of the sentence adjudging confinement in excess of 18 months was suspended for 1 year.  The applicant was transferred to Fort Riley, KS, to serve his confinement.

8.  On 28 November 1988, the ABCMR directed a correction of the applicant's military records by promoting him to the pay grade E-6 effective 7 February 1987 with an appropriate date of rank.  The ABCMR directed that his records be corrected to show he continued to serve in pay grade E-6 until his reduction to pay grade E-1 by competent authority on 9 November 1987 (the date the convening authority approved his sentence from his general court-martial).  The U.S. Army Finance and Accounting Center (USAFAC) was advised of the determination for any adjustments of pay and allowances that may have been due.

9.  On 5 January 1989, the U.S. Army Court of Military Review set aside the finding of guilty for violation of a lawful general regulation by failure to "show and tell" items valued at $3,257.00 on 16  June 1987 and dismissed the specification. 
The U.S. Army Court of Military Review affirmed the remaining findings of guilty and upon reassessing the sentence on the basis of the error and the entire record, the sentence was affirmed.  The court also corrected the court-martial order to reflect the applicant's correct social security number.

10.  On 12 July 1989, the applicant's bad conduct discharge was ordered executed.

11.  On 21 August 1989, the applicant was discharged as a result of a court-martial.  He had completed 1 year, 3 months, and 25 days net active service that was characterized as bad conduct.  He had 625 days of lost time.

12.  The statement submitted by the applicant's wife attests to his deteriorating health and his lack of any health insurance.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge, provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, and requires that the appellate review must be completed and then the affirmed sentence ordered duly executed.

14.  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.

15.  Army Regulation 635-200 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.  

16.  Army Regulation 635-200 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 contends his bad conduct discharge should be upgraded to an honorable discharge.  He contends he cannot get veterans' benefits with a bad 

conduct discharge.  He contends his contract was invalid when he reenlisted in 1986.  He contends the Army did not honor his contract.

2.  Upon the applicant's discharge on 30 April 1986 he served in the USAR and the WAARNG.  He then enlisted in the USAR DEP and on 7 October 1986 he enlisted in the Regular Army.  His contract shows he enlisted for the First Assignment Option for Korea.  He was assigned to Korea on 21 October 1986.  His contract does not list any other guarantees.  Therefore, his enlistment contract was valid and the Army had honored his contract for assignment to Korea.

3.  The applicant contends that his pay for the grade of E-6 should be reinstated and that he should be paid as an E-6 throughout his ordeal.

4.  The ABCMR previously corrected the applicant's records to promote him to pay grade E-6 from 7 February 1987 to the date the convening authority approved his court-martial sentence reducing him to pay grade E-1.  The ABCMR notified USAFAC of the determination for any adjustments of pay and allowances that may have been due.  He was reduced to pay grade E-1 by sentence of a general court-martial and that sentence was affirmed by the U.S. Army Court of Military Review.  Therefore, the error concerning his promotion to pay grade E-6 was corrected and there is no error in his reduction to pay grade E-1.

5.  The applicant contends his time spent at Fort Riley should be removed from his record.  He was transferred to Fort Riley to serve his sentence of confinement and his sentence was affirmed by the U.S. Army Court of Military Review.  Therefore, there are no provisions for removal of his time spent at Fort Riley.

6.  The applicant's and his wife's statements indicating the applicant's poor health and his need for health care were noted.  However, the ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.  In addition, granting veterans' benefits is not within the purview of the ABCMR.  Disabilities which are diagnosed or worsen after a Soldier is separated are treated by and compensated for by the Department of Veterans Affairs (VA).  Any questions regarding eligibility for service-connected disability should be addressed to the VA.

7.  The evidence shows that the applicant's trial by general court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

8.  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.

9.  The applicant's post-service achievements and conduct are noted.  However, good post-service conduct alone is usually not sufficiently mitigating to upgrade a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

10.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or achievement.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis to support the applicant's request to upgrade his discharge at this time.

11.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20090013914



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ABCMR Record of Proceedings (cont)                                         AR20090013914



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