BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090016545 


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 a general discharge.

2.  The applicant states that he was charged with driving under the influence (DUI) and transferred from his unit to the medical holding unit in Germany in an in-patient status.  He indicates that he was a patient of the rehabilitation department and that he was exempt from the Uniform Code of Military Justice (UCMJ) until after his release from medical hold; however, his court-martial was conducted while he was in the medical holding unit.  He goes on to state that he was not advised of his Article 31 rights or provided adequate legal representation during the court-martial proceedings.  He claims that prior to this isolated incident his character of service was classified as honorable, that he received several commendations and recognition for meritorious service, that he represented his command in several noncommissioned officer competitions, and that he participated in command sport competitions.

3.  The applicant also states that he is currently being evaluated for chronic multi-symptom illnesses and undiagnosed chronic disabilities incurred while in the Southwest Asia theater of operations during the Gulf War.  He contends that within 4 months of his return he started to have unexplained illnesses and his health declined from excellent to poor.  He indicates that he is unable to afford medical coverage, that he continues to suffer from the effects of exposure to chemical agents while in country, and that if his discharge was changed to a general discharge he would be eligible for Department of Veterans Affairs (DVA) health care and treatment.
4.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army on 30 October 1984 for a period of 3 years.  He trained as a chemical operations specialist and was honorably discharged on 11 June 1987 for immediate reenlistment.  He reenlisted on 12 June 1987 for a period of 6 years.  He attained the rank of sergeant on 8 January 1988.  Records shows he arrived in Germany on 25 August 1988 and he served in Southwest Asia from 16 December 1990 to 28 April 1991.

3.  On 14 October 1992 while in Germany, nonjudicial punishment was imposed against the applicant for drunk driving.  His punishment consisted of a reduction to E-4 (suspended), a forfeiture of pay, and extra duty.

4.  On 1 June 1993 while in Germany, the applicant was convicted in accordance with his pleas by a general court-martial of violating a lawful general regulation (possessing an alcoholic beverage in a government vehicle), drunk driving, wrongful appropriation of a military motor vehicle, and damaging government property.  He was sentenced to be confined for 45 days, to forfeit $750.00 pay per month for 2 months, to be reduced to E-1, and to be discharged from the service with a bad conduct discharge.  On 4 August 1993, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for 45 days, forfeiture of $543.00 pay per month for 2 months, and reduction to E-1.

5.  The applicant was released from confinement on 8 July 1993 and placed on excess leave on 12 July 1993.

6.  On 17 November 1993, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  On 6 May 1994, the convening authority ordered the bad conduct discharge to be executed.

7.  Accordingly, the applicant was discharged with a bad conduct discharge on 21 June 1994 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served a total of 9 years, 6 months, and 15 days of creditable active service with 37 days of lost time due to confinement. 

8.  Army Regulation 635-200 sets forth the basic authority for the 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.

9.  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.

10.  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's contentions that he was exempt from the UCMJ until after his release from medical hold and that he was not advised of his Article 31 rights or provided adequate legal representation relate to evidentiary and procedural matters that should have been addressed and conclusively adjudicated in his general court-martial and appellate proceedings.

2.  Although the applicant contends that his DUI in 1993 was an isolated incident, the evidence of record shows that nonjudicial punishment was imposed against him in October 1992 for drunk driving.

3.  A discharge is not upgraded for the purpose of obtaining DVA benefits.
4.  The 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 and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

5.  The applicant's record of service during his last enlistment included one nonjudicial punishment, one special court-martial conviction, and 37 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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)                                         AR20090016545



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ABCMR Record of Proceedings (cont)                                         AR20090016545



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