IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100000180


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).

2.  The applicant states his discharge should be upgraded because he was injured on active duty before he was court-martialed and given a BCD, and he should be able to receive medical treatment from the Department of Veterans Affairs (DVA) for issues relating to his injury.

3.  The applicant provides a handwritten letter and a DVA letter, dated 14 December 2009, denying him medical treatment for residuals for a broken arm.

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 US Army Reserve Delayed Entry Program (DEP) for 8 years on 19 September 1988.  On 6 February 1989, he was discharged from the DEP and enlisted in the Regular Army for 4 years on 7 February 1989.

3.  The applicant was shipped to the 43rd Adjutant General Battalion (Reception) at Fort Leonard Wood, MO, from which he was assigned to Company A, 6th Battalion, 10th Infantry Regiment, Fort Leonard Wood for basic training.  For reasons unknown, he was reassigned within the 10th Infantry Regiment, completing his basic training with Company E, 3rd Battalion.

4.  The applicant was next shipped to Fort Lee, VA and assigned to Company A, 244th Quartermaster (QM) Battalion, 23th QM Brigade for advanced training in military occupational specialty (MOS) 76P (Materiel Control and Accounting Specialist).  He completed his training and was awarded the MOS.

5.  The applicant's first permanent duty assignment was with Headquarters and Headquarters Company, III Corps, Fort Hood, TX.  He arrived there on or about 4 October 1989.

6.  The applicant was absent without leave (AWOL) from Fort Hood from 17 October 1990 to 30 December 1990.  He was apprehended by civilian police in Houston, TX and returned to military control at Fort Hood on 31 December 1990.

7.  Special Court-Martial Order Number 12, Headquarters, Fort Hood, dated 11 June 1991 shows the applicant was charged with "on or about 17 October 1990, without authority, absent himself from his unit, to wit:  Headquarters and Headquarters Company, III Corps, located at Fort Hood, Texas, and did remain so absent until he was apprehended on or about 28 December 1990.  In accordance with his plea of guilty, he was found guilty on 26 April 1991, except the words "he was apprehended."

8.  The applicant was sentenced to a BCD, confinement for 4 months, forfeiture of $400 pay per month for 4 months, and reduction to private (PVT/E-1).

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he discharged with a BCD on 17 September 1992 under the provisions of Army Regulation 635-200, chapter 3, section IV as a result of court-martial.  He had 2 years, 11 months, and 17 days of creditable service and 237 days of lost time due to AWOL and confinement.

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 change a discharge due to matters which should have been raised in the appellate process, 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.

11.  Army Regulation 635-200 provides guidance on characterization of service.  
Paragraph 3-7b states that a GD 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his BCD be upgraded to a GD.

2.  The applicant was AWOL from his Fort Hood unit for 75 days.  Upon his return to military control, he was tried by a special court-martial empowered to issue a BCD.  His court-martial was conducted in accordance with rules and regulations and his sentence was appropriate to his offense.

3.  The U.S. Army does not have a policy to upgrade discharges for the purpose of qualifying for benefits.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, 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)                                         AR20100000180





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ABCMR Record of Proceedings (cont)                                         AR20100000180



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