IN THE CASE OF:	

		BOARD DATE:	  8 April 2010

		DOCKET NUMBER:  AR20090017456 


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 he is sorry for his past behavior and that he needs his discharge upgraded so that he may have access to Department of Veterans Affairs (VA) medical facilities, loan programs, and to assist him in obtaining employment.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 26 January 1984.

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 17 January 1980 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 91B (Medical Specialist).

3.  On 30 December 1981, the applicant was assigned to the Medical Company, U.S. Army Aeromedical Center (USAAMC) at Fort Rucker, AL.

4.  On 15 April 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for having a female service member in his room.

5.  On 24 January 1983, the applicant was tried before a special court-martial.  He pled guilty and was found guilty of:

   a.  wrongful sale of 17.43 grams, more or less, of marijuana on or about
3 September 1982.

   b.  wrongful distribution of 10.48 grams, more or less, of marijuana on or about 8 October 1982.

   c.  wrongful possession of 10.48 grams, more or less, of marijuana with the intent to distribute on or about 8 October 1982.

   d.  wrongful possession of 11.22 grams, more or less, of marijuana on or about 8 October 1982.

6.  The applicant's sentence consisted of reduction to private/pay grade E-1, a forfeiture of $382 pay for 6 months, confinement for 4 months, and a bad conduct discharge.  The convening authority suspended 1 month of confinement and approved the remainder of the sentence.

7.  On 29 June 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  On 23 January 1984, the applicant's sentence to a bad conduct discharge was ordered executed.

8.  On 26 January 1984, the applicant was discharged as a result of court-martial.  His net active service was 3 years, 9 months, and 26 days.  He had 
68 days of lost time.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.
10.  Army Regulation 635-200 (Enlisted Separations), then in effect, stated a Soldier would 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 have been completed and the affirmed sentence ordered duly executed.

11.  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.

12.  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 bad conduct discharge should be upgraded to a general discharge so that he may be eligible for health care from the VA, VA loan programs and employment opportunities.  He contends he is sorry for his past actions.

2.  The ABCMR does not upgrade discharges based on the passage of time or solely for the purpose of establishing eligibility for benefits from other agencies.  The eligibility requirements for and the granting of veteran's benefits is not within the purview of the ABCMR.  Questions regarding eligibility for medical benefits and other VA programs should be addressed to the VA.

3.  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.


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.

5.  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.  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)                                         AR20090017456



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ABCMR Record of Proceedings (cont)                                         AR20090017456



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