IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010 

		DOCKET NUMBER:  AR20100008740 


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 be upgraded to a general discharge. 

2.  The applicant states:

* He would like an upgrade so he can receive medical treatment at the Department of Veterans Affairs hospital and other benefits
* He was injured in the service and would like to have the problem corrected
* He points out he served 9 years in the Army and he fought in Panama

3.  The applicant provides no documentary evidence in support of 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 enlisted in the Regular Army on 10 February 1982 for a period of 3 years.  He trained as an infantryman.  On 20 June 1985, he was honorably discharged for immediate reenlistment.  He reenlisted on 21 June 1985 for a period of 4 years.  On 6 February 1989, he was honorably discharged for immediate reenlistment.  He reenlisted on 7 February 1989 for a period of 
6 years.  He attained the rank of sergeant on 7 October 1985.
 
3.  On 30 May 1989, the applicant received a letter of reprimand for drunk driving.  

4.  The applicant served in Panama during the period 20 December 1989 to 
31 January 1990. 

5.  On 15 April 1991, the applicant was convicted by a special court-martial of being absent without leave from 22 October 1990 to 25 February 1991 and missing movement.  He was sentenced to be reduced to pay grade E-1, to be confined for 2 months, to forfeit $400.00 pay per month for 2 months, and to be discharged from the service with a bad conduct discharge.  On 23 May 1991, the convening authority approved the sentence.

6.  The applicant was placed on excess leave on 3 September 1991.

7.  On 31 October 1991, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

8.  On 1 April 1992, the convening authority ordered the bad conduct discharge to be executed.

9.  Accordingly, the applicant was discharged with a bad conduct discharge on 30 April 1992 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served a total of 10 years, 1 month, and 2 days of creditable active service with 177 days of lost time.  

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be 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 ABCMR does not correct records solely for the purpose of making the applicant eligible for veterans' or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's prior honorable discharges and his combat service in Panama were noted.  However, his record of service during his last enlistment included one special court-martial conviction and 177 days of time lost.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

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)                                         AR20100008740



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ABCMR Record of Proceedings (cont)                                         AR20100008740



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