IN THE CASE OF:	

		BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090015573 


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 an upgrade of his bad conduct discharge.

2.  The applicant states an upgrade is needed for benefits and possible reentry into military service.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 20 August 1990, in support of his request.

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 records show he enlisted in the Regular Army for a period of 3 years on 6 November 1986 and held military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade he attained during his military service was specialist/E-4.

3.  On 21 September 1988, he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice for unlawfully striking another Soldier in the face with his fists on or about 10 September 1988.  His punishment consisted of 14 days of restriction and 14 days of extra duty.

4.  His records contain several counseling statements by various members of his chain of command for miscellaneous infractions including dishonored checks, speeding, driving under the influence, billets disturbance, civilian or military police apprehension, and alcohol abuse.

5.  On 8 January 1989, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his prior infractions.  He was furnished a copy of this bar and elected to submit a statement in his own behalf wherein he stated that he desired to remain in the Army.  His bar was ultimately approved by his battalion commander.

6.  On 28 January 1989, he was apprehended by military police for drunk driving and assault.

7.  On 30 January 1989, the Clinical Director, Alcohol and Drug Abuse Prevention and Control Program, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, stated that he was enrolled in the Alcohol and Drug Abuse Prevention and Control Program but did not make satisfactory progress due to excessive absence at individual counseling sessions.

8.  On 26 May 1989, he pled guilty at a general court-martial to one specification of aggravated assault on or about 28 January 1989 and one specification of reckless driving on or about 28 January 1989.  The court sentenced him to a bad conduct discharge, confinement for 14 months, a forfeiture of $250.00 pay per month for 14 months, and a reduction to private/E-1.

9.  On 30 August 1989, the convening authority approved the sentence, but suspended the confinement in excess of 9 months for a period of 9 months with a provision of automatic remission and, except for the bad conduct discharge, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

10.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

11.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 39, dated 3 August 1990, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

12.  He was discharged from the Army on 20 August 1990.  His DD Form 214 shows he was discharged as a result of court-martial with a bad conduct discharge.  This form further confirms he completed 3 years, 9 months, and 15 days of creditable military service and had 105 days of lost time.

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.

14.  Army Regulation 635-200 (Personnel Separations), 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.

15.  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 contends that his discharge should be upgraded for the purpose of benefits and possible reentry into military service.

2.  His trial by a general court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  After a review of his entire record of service, including his NJP, bar to reenlistment, and history of negative counseling, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge to either an honorable or a general discharge.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, he must show or it must otherwise satisfactorily appear that the record is in error or unjust.  He did not submit evidence that would satisfy this requirement. 
Therefore, he is not entitled to an honorable or 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)                                         AR20090015573



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ABCMR Record of Proceedings (cont)                                         AR20090015573



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