IN THE CASE OF:	

		BOARD DATE:	11 May 2010  

		DOCKET NUMBER:  AR20090018675 


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 (BCD) to an honorable discharge.

2.  The applicant states he would like his BCD upgraded so he can obtain medical benefits.  He is in poor health and in need of veteran services.  His attitude and disposition in life has changed and being older and mature, he now understands his mistake that he will not make again.

3.  The applicant provides a letter of support from his wife.  He also states he was submitting as evidence his medical records; however, no medical records were received with 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's record shows he was enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 3 June 1977.  He was discharged from the USAR DEP on 27 September 1977 and he enlisted in the Regular Army on 28 September 1977 for 3 years in pay grade E-1.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).  He served in Korea from
6 January to 17 October 1978.   He was advanced to pay grade E-2 on 28 March 1978.

3.  On 21 September 1978, he was convicted by a special court-martial of stealing, on 22 June 1978, 24 bottles of scotch whiskey, one bottle of vodka, one Texas Instrument calculator, one Moore adding machine, $239.50 in cash, and money orders valued at $133.00, the property of the Camp Humphreys’ Noncommissioned Officers (NCO) Open Mess System; and for willfully and unlawfully entering the Class VI Store, the property of the Camp Humphreys’ NCO Open Mess System, with intent to commit a criminal offense.  He was sentenced to reduction to pay grade E-1, forfeiture of $100.00 pay per month for 4 months, confinement at hard labor for 4 months, and to be discharged from the Army with a BCD.  The sentence was adjudged on 21 September 1978.

4.  He was reduced to pay grade E-1 and placed in confinement on 21 September 1978.

5.  On 20 October 1978, Headquarters, U.S. Army Element, I Corps (ROK [Republic of Korea]/US) Group, Special Court-Martial Order Number 23, approved the sentence and ordered it duly executed, but the execution of that portion adjudging confinement at hard labor in excess of 60 days was suspended until 16 April 1979.  There is no evidence the suspension was vacated.

6.  On 15 June 1979, Headquarters, 7th Infantry Division, Fort Ord, CA, Special Court-Martial Order Number 30, the provisions of Article 71(c), UCMJ, having been complied with, affirmed the sentence and ordered it duly executed.

7.  There is no evidence he petitioned the U.S. Court of Military Appeals for a review of his case.

8.  The applicant was discharged in pay grade E-1 on 3 August 1979, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 11, as a result of court-martial.  He was credited with 1 year, 8 months, and 17 days of net active service and 49 days of time lost due to confinement.

9.  His military records show the highest pay grade he attained while on active duty was E-2 prior to his 1979 discharge.  His records document no acts of valor or significant achievement.

10.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

11.  He submitted a letter from his wife, wherein she stated the applicant regretted the way he left the service and he had really changed.  The applicant had been the provider for their household for 23 plus years and is now ill with cancer and can’t work to provide for his family.  He is going to need plenty of medical attention and they can’t afford the expenses.  It is really hard for her husband, their daughters, and herself to adjust to and they are praying for better days to come.

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review had to be completed and the sentence affirmed before it could be duly executed.

13.  Army Regulation 635-200, paragraph 3-7a, specified an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

14.  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 change a court-martial 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 evidence shows that the applicant was convicted by a special court-martial and found guilty of stealing several bottles of alcohol, a calculator, an 
adding machine, and money from an NCO Open Mess and of the willful and unlawful entry with intent to commit a criminal offense.  He was discharged pursuant to the sentence of a special court-martial and was issued a BCD after the sentence was affirmed.
2.  The applicant's special court-martial adjudged on 21 September 1978 was warranted by the gravity of the offenses charged.  A BCD is adjudged by a court-martial when it determines a Soldier should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment.  The applicant's offenses, when weighed with his overall disciplinary history, warranted this sentencing.

3.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offenses.  There is no error or injustice in his record.  He has provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations, with due process.

4.  The applicant's desire to have his BCD upgraded so that he can qualify for medical and/or other benefits administered by the Department of Veterans Affairs (VA) is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of qualifying an applicant for medical or other benefits administered by the VA.

5.  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.  Given the applicant's 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.

6.  In view of 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)                                         AR20090018675



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018675



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1