IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100000474


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 (HD).

2.  The applicant states:

   a.  that he has no means of medical or social support and resides in a homeless shelter;

   b.  that he is disabled and needs healthcare and housing benefits from the Department of Veterans Affairs (VA); and

   c.  that the entries contained in item 25 (Education and Training Completed) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) should clarify if he is entitled to an honorable discharge based on the entry “Benefits of Honorable Discharge.”

3.  The applicant provides a copy of his DD Form 214.

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 records show he enlisted in the Regular Army (RA) on 30 June 1972.  He completed basic combat training at Fort Knox, KY.

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) confirms, in Item 18 (Appointments & Reductions), he was advanced to private (PV2)/E-2 on
30 October 1972.  This was the highest rank/grade he attained while serving on active duty.  It also shows he was reduced to private (PV1)/E-1 on 30 January 1973.

4.  The DA Form 20 shows in item 44 (Time Lost) that the applicant accrued a total of 222 days time lost due to AWOL and confinement from 9 April to
16 October 1973.

5.  On 25 June 1973, pursuant to his pleas, a general court-martial (GCM) found the applicant guilty of the following two charges of violating the indicated Articles of the Uniform Code of Military Justice (UCMJ):

* Article 86 - (2 specifications) for failing to go at the time prescribed to his appointed place of duty on 4 April 1973 and for being AWOL from
9 – 10 April 1973
* Article 92 (3 specifications) for wrongfully selling cocaine on 30 March 1973, wrongfully possessing cocaine on 6 April 1973, and for wrongfully transferring cocaine on 6 April 1973

6.  The resultant sentence imposed by the military judge included a BCD, confinement at hard labor for 9 months, and forfeiture of all pay and allowances.  The GCM convening authority approved only so much of the sentence that provided for the BCD, confinement at hard labor for 7 months, and forfeiture of $204.00 pay for seven months.

7.  On 21 August 1973, the U.S. Court of Military Review found the approved findings of guilty and the sentence correct in law and fact, and affirmed the findings of guilty and the sentence with the exception of modifying only that portion that provided for 7 months confinement to hard labor to 6 months.
8.  On 1 October 1973, GCM Order Number 916, issued by Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, directed that, Article 71c of the UCMJ having been complied with, the BCD portion of the sentence be duly executed.  On 16 October 1973, the applicant was discharged accordingly.

9.  The DD Form 214 issued to the applicant on the date of his discharge shows that he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-2, after completing a total of 9 months and 9 days of creditable active military service and accruing 222 days of time lost.

10.  Item 25 of the applicant’s DD Form 214 shows the following entries:

* Uniformed [sic] Code of Military Justice
* Army Training Program 21-114
* Benefits of Honorable Discharge
* Geneva Convention

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 11-2 of this regulation, in effect at the time, provided that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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.

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 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.

15.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Paragraph 54 of the version of the regulation in effect at the time provided instructions for completing item 25 and stated, in pertinent part, that for enlisted personnel, installation training courses, military correspondence courses, and off-duty courses completed successfully during the period covered by the DD Form 214 would be entered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his BCD should be upgraded to an HD to allow him to receive benefits.

2.  The applicant was 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.

3.  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.

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

5.  Further, all entries contained in item 25 of his DD Form 214 refer to education and training he received during military service.  Accordingly, the entry “Benefits of Honorable Discharge” confirms the applicant’s receipt of this training and has no bearing on the characterization of the discharge he received.

6.  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.

7.  In view of the above, the applicant’s request should be denied.

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)                                         AR20100000474



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ABCMR Record of Proceedings (cont)                                         AR20100000474



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