IN THE CASE OF:	

		BOARD DATE:	  9 April 2010

		DOCKET NUMBER:  AR20090015630 


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 upgrade of his bad conduct discharge to at least a general, under honorable conditions discharge.

2.  The applicant states at the time of his military service he was young, under a lot of pressure, and did not stop to think of the consequences of his mistakes.

   a.  He states he used alcohol as a way to deal with the stress of military life, but his use of alcohol made things worse for him.  He adds that he knew he had a problem; however, he was never offered any type of counseling.

   b.  He states he went through counseling after he was discharged, got his life together, and has been a good citizen since then.  He does volunteer work in his community, attends church on a weekly basis, and has a clean record.

   c.  He believes his discharge should be upgraded because he would like to be able to use GI Bill educational benefits and make things right.

3.  The applicant provides copies of his enlistment documents, court-martial orders, and separation documents.

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 for a period of 3 years on 21 July 1995.  At the time he was 18 years of age and a high school graduate.  Upon completion of training he was awarded military occupational specialty (MOS) 63Y (Track Vehicle Mechanic).

3.  The facts and circumstances leading to the applicant's court-martial are not available.  However, Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, General Court-Martial Order Number 65, dated 1 June 1999, shows that in the general court-martial case of the applicant, the sentence to reduction to the grade of private (PV1)/E-1, forfeiture of all pay and allowances, confinement for 33 months, and a bad conduct discharge adjudged on 30 July 1998 was affirmed by the U.S. Army Court of Military Review.  The provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was discharged on 23 June 1999 with a bad conduct discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3 (Character of Service/Description of Separation), based on court-martial (other).  At the time of his discharge he had completed 3 years and 6 days of net active service.  Item 29 (Dates of Time Lost During This Period) shows he had time lost from 31 July 1998 through 22 June 1999.

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.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a member will be given a:
   a.  bad conduct discharge [DD Form 259A] 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.

   b.  general discharge 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.

7.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded because he was immature and used alcohol to cope with the stress of military life, which led to his mistakes.  He adds he has been a good citizen since his discharge from the military and wants to use government educational benefits and make things right.

2.  The applicant's contention that he was young and immature is not supported by the evidence of record.  The applicant was 18 years old when he entered the U.S. Army.  He demonstrated the capacity for honorable service by the completion of training and apparently more than 3 years of service without an offense of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Thus, the applicant's contention is not sufficiently mitigating to warrant relief.

3.  Absent evidence to the contrary it is concluded that 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 applicant's rights were protected throughout the court-martial process.



4.  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.  The applicant's 3 years of active duty service from July 1995 until his court-martial in July 1998 was considered.  Given his undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  The applicant's claimed post-service conduct and commitment to his community since his discharge is noted.  However, his post-service conduct is insufficient to warrant an upgrade of his discharge.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

7.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.  As a result, the applicant's discharge is presumed proper and equitable.

8.  Based on the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090015630



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ABCMR Record of Proceedings (cont)                                         AR20090015630



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