BOARD DATE: 9 December 2010
DOCKET NUMBER: AR20100010088
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 so he may receive benefits from the Department of Veterans Affairs.
2. He states he was told at the time of his discharge that his BCD would be upgraded after a period of 6 months.
3. He provides no additional evidence in support of this 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. His record shows he enlisted in the Regular Army on 8 May 1984. The highest rank/pay grade he attained while serving on active duty was private first class/E-3. However, he held the rank/pay grade of private/E-1 at the time of separation.
3. Special Court-Martial (SPCM) Order Number 1 published by Headquarters, VII Corps on 6 January 1986 shows that on 6 November 1985 the applicant pled guilty and was found guilty at a SPCM of
* Two specifications of violating Article 86 of the Uniform Code for Military Justice (UCMJ) by absenting himself without authority from 11 August to 13 August 1985, and departing his place of duty without authority on 15 August 1985
* One specification of violating Article 112a of the UCMJ by wrongfully possessing with the intent to distribute 12.44 grams of hashish on 4 July 1985
4. On 6 November 1985, the following sentence was adjudged:
* BCD
* Reduction to the lowest enlisted grade
* Confinement for 2 months
* A forfeiture of $350 pay for 2 months
5. On 6 January 1986, the sentence was approved and except for the part of the sentence extending to the BCD was ordered to be executed.
6. On 1 April 1986, the U.S. Army Court of Military Review upheld the findings of guilty and found the sentence correct in law and fact and affirmed the findings of guilty and the sentence.
7. On 21 July 1986, the appropriate authority ordered the BCD duly executed.
8. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 9 September 1986 under the provisions of Army Regulation 635-200 (Personnel Separations) due to conviction by a court-martial. This form also shows his character of service as "Bad Conduct Discharge with SPCM."
9. References:
a. 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.
b. Army Regulation 635-200 provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review is required to be completed and the affirmed sentence ordered duly executed.
c. 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 record is devoid of any evidence and he did not provide any evidence that he was ever told his BCD would be upgraded after a period of 6 months. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade a BCD as a result of the passage of time.
2. The applicant's trial by court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable law and regulations. Therefore, there is no legal basis for granting the applicant's request for relief.
3. The available evidence failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated and his discharge upgraded.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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.
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