IN THE CASE OF:	  

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090017681 


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 his bad conduct discharge (BCD) be upgraded to a general discharge (GD) under honorable conditions.

2.  The applicant states his BCD should be upgraded for the following reasons: 

		a.  To make him eligible for Department of Veterans Affairs (VA) health care and housing benefits;

		b.  He was young and irresponsible during his military service;

		c.  He did not understand the military system;

		d.  There were no mentors available to help him; and

		e.  He did not understand the consequences of his choices.

3.  The applicant provides no documentary evidence 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 military record shows he enlisted in the Regular Army on 
26 June 1978. He was trained in and awarded military occupational specialty 11B (Infantryman), and the highest rank he attained was private first class (PFC)/E-3. 

3.  The applicant’s military record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 6 July 1978, for willfully and maliciously setting fire to a blanket, government property valued at $15.70, while assigned to the U.S. Army Reception Station on 4 July 1978.

4.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows he earned the Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar and Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.  

5.  The applicant's DA Form 2-1 also shows he accrued 146 days of time lost due to being absent without leave (AWOL) and being in confinement. 

6.  On 4 June 1979, a special court martial (SPCM) found the applicant guilty of violating Article 121 of the UCMJ by stealing the property of another Soldier valued at $665.00.  The resultant sentence was a reduction to private (PVT), confinement at hard labor for 6 months, a forfeiture of $264.00 pay for
6 months, and a BCD.  


7.  On 6 March 1980, SPCM Order Number 18, issued by Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, directed, Article 71c of the UCMJ having been complied with, that the BCD portion of the sentence be duly executed.  On 17 March 1980, the applicant was discharged accordingly.

8.  The DD Form 214 issued the applicant on 17 March 1980 shows he was separated under the provisions of paragraph 11, Army Regulation 635-200, by reason of court-martial.  At the time, he had completed 1 year, 3 months, and 
28 days of creditable active military service and accrued 146 days of time lost due to being AWOL and in confinement. 

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b provides guidance on characterization of service and types of discharges.  It states a GD is 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.  

10.  Chapter 11 of the same regulation, in effect at the time of the applicant's discharge, provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or SPCM after completion of the appellate review and after such affirmed sentence has been ordered duly executed.

11.  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 his BCD should be upgraded to a GD to allow him to receive VA benefits, because he was young, he did not understand the military system, due to a lack of mentors, and because he did not fully understand the consequences of his actions were carefully considered and they are not sufficient to support clemency.  

2.  By law, any redress of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

3.  The applicant was only discharged after completion of the appellate process and only after his sentence was affirmed by the appropriate appellate court.  His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  Absent any error or injustice related to the applicant's court-martial conviction, given his undistinguished record of service, clemency is not warranted in this case. 

4.  Additionally, discharges are not upgraded solely for the purpose of making an individual eligible for benefits offered by another agency.  

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090017681



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ABCMR Record of Proceedings (cont)                                         AR20090017681



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