IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100014594 


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 that his discharge be upgraded.

2.  The applicant states he is requesting an upgrade of his discharge in order to apply for the Montgomery GI Bill (MGIB).  He states he wrote to the boards and received a letter stating he was not eligible.  He contends that he is eligible for the MGIB because it is a benefit entitlement for his first 3 years of service which he completed honorably.  He reenlisted and was discharged with a bad conduct discharge during his second term of enlistment.  He called the Department of Veterans Affairs and was informed that in order to be eligible for the MGIB, he would have to apply for an upgrade of his discharge.

3.  The applicant provides an Honorable Discharge Certificate, a DD Form 214 (Certificate of Release or Discharge from Active Duty), a DD Form 2366 (MGIB Act of 1984), and a DA Form 3349 (Physical Profile).

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 17 November 1997 for a period of 3 years.  He completed his initial entry training and was awarded military occupational specialty 13B (Cannon Crewmember).  On 25 April 2000, he reenlisted for 3 years.

3.  On 5 September 2002, he was found guilty by a general court-martial of the following offenses:

	a.  making a false official statement with intent to deceive;

	b.  unlawfully striking another Soldier;

	c.  unlawfully entering the barracks room, the property of another Soldier, with the intent to commit an indecent act therein; and

	d.  wrongfully committing an indecent act upon another Soldier.

4.  He was sentenced to forfeiture of all pay and allowances, confinement for 30 months, and to be discharged from the service with a bad conduct discharge. 
On 8 January 2003, only so much of the sentence as provided for forfeiture of all pay and allowances, confinement for 14 months, and discharge from the service with a bad conduct discharge was approved.

5.  On 17 October 2005, the U.S. Army Court of Criminal Appeals affirmed the findings and the sentence.

6.  On 16 February 2006, the sentence having been affirmed and the provisions of Article 71c having been complied with, the bad conduct discharge was ordered executed.

7.  Accordingly, he was discharged on 28 April 2006 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, by reason of court-martial with a bad conduct discharge.  Item 30 (Remarks) of his DD Form 214 shows his first enlistment as honorable (i.e., the entries, "CONTINUOUS HONORABL EACTIVE SERVICE:  19971116-20000424" and "	MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE.")

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

9.  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.

10.  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.

11.  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 request for an upgrade of his discharge has been carefully considered.

2.  The ABCMR does not upgrade discharges for the sole purpose of making an individual eligible for education benefits.

3.  His 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 and the final discharge appropriately characterized the misconduct for which he was convicted.

4.  The fact that the applicant's first enlistment was completed honorably is indicated in item 30 of his DD Form 214.  However, determination of entitlement to MGIB benefits is in the purview of the Department of Veterans Affairs, not the Department of Defense.

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 seriousness of his criminal offenses and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.

6.  Based on his misconduct, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

7.  In view of the above, 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 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)                                         AR20100014594



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ABCMR Record of Proceedings (cont)                                         AR20100014594



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