IN THE CASE OF:	  

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090015537 


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 so that he may receive Department of Veterans Affairs (VA) medical benefits.

2.  The applicant states his disciplinary action was based on race and education, therefore, he was unable to properly defend himself verbally.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 12 February 1982 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 enlisted in the Regular Army on 11 July 1978 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 76Y (Unit Supply Specialist).

3.  On 21 March 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for assaulting a military policeman, a person in execution of military police duties, wrongful possession of marihuana, and resisting lawful apprehension by a military policeman.

4.  On 21 May 1979, the applicant accepted NJP under Article 15, UCMJ, for violation of a general regulation by fraternizing with a basic trainee.

5.  On 8 January 1980, the applicant pled not guilty but was found guilty before a special court-martial of disrespectful behavior towards his superior commissioned officer, disrespectful language towards his superior noncommissioned officer (NCO), and for being disorderly.  His sentence consisted of confinement for 
30 days.  On 12 May 1980, the convening authority approved the sentence.

6.  On 28 February 1980, the applicant accepted NJP under Article 15, UCMJ, for failure to obey a lawful order.

7.  On 24 September 1980, the applicant accepted NJP under Article 15, UCMJ, for failure to obey a lawful order from his superior NCO.

8.  On 11 December 1980, before a special court-martial the applicant pled not guilty but was found guilty of willful disobedience of a lawful order from a commissioned officer, being disrespectful in deportment towards his superior NCO, using disrespectful language towards his superior NCO, two specifications of communicating a threat to an NCO, and orally communicating certain indecent language towards an NCO, a female.  His sentence consisted of reduction to pay grade E-1, a forfeiture of $334 pay for 6 months, confinement for 6 months, and to be discharged with a bad conduct discharge (one previous conviction considered).  

9.  On 22 January 1981, the convening authority modified the findings of guilty for "willful disobedience of a lawful order" and approved the sentence as adjudged.

10.  On 24 July 1981, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

11.  On 22 January 1982, the applicant's sentence to a bad conduct discharge was ordered executed.

12.  On 12 February 1982, the applicant was discharged as a result of a court-martial.  His net active service was 3 years, 1 month, and 21 days.  He had 
160 days time lost.  

13.  Item 17 (Civilian Education and Military Schools) on the applicant's 
DA Form 2-1 (Personnel Qualification Record) indicates he graduated from high school in 1975.

14.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 9 December 1986, the ADRB reviewed his case and denied his request.  The ADRB determined that the applicant's discharge was proper and equitable and his service was properly characterized.  

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge and 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 that the appellate review must be completed and affirmed sentence ordered duly executed.

16.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  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.

18.  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 contends his discharge should be upgraded so he can receive medical benefits from the VA.  He contends his disciplinary action was based on race and education; therefore, he was unable to properly defend himself verbally. 

2.  The applicant provided no evidence to support his contention that his disciplinary action was based on race and his DA Form 2-1 shows that he graduated from high school 3 years prior to his enlistment in the Army.  In addition, he had already completed 3 years of active service in the Army prior to his conviction.  Therefore, race and his level of education were not considered to be mitigating factors in his case.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.  In addition, granting veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for medical benefits should be addressed to the VA.

4.  The evidence shows the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

5.  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.

6.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or achievement that would warrant special recognition.  He accepted NJP on four occasions and he had one previous conviction before a special court-martial.  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 upon which to support the applicant’s request to upgrade his discharge at this time.


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)                                         AR20090015537



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ABCMR Record of Proceedings (cont)                                         AR20090015537



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