BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100020789 


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 to an honorable discharge or a refund of his Montgomery GI Bill (MGIB) payments.

2.  The applicant states he had two separate enlistment periods and that for the period 9 September 1986 to 19 October 1989 he contributed to the MGIB and he was honorably discharged.  He requests his discharge be upgraded to honorable so he can use his educational benefits or refund of his $1,200.00 contribution.  Further, he contends congressmen and senators went through the exact same thing as he did and they were not punished.  He made restitution and all he wants is to go to school or get his money back.

3.  The applicant provides no additional evidence.

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.  On 9 September 1986, the applicant enlisted in the Regular Army.  He completed his required training and he was awarded military occupational specialty 16H (Operations Intelligence Assistant).  The record shows he had continuous honorable service from 9 September 1986 to 2 December 1991.

3.  His record contains a Veterans' Educational Assistance Act of 1984 (GI Bill) form which shows he enrolled in the GI Bill of 1984 on 12 September 1986.  This documents states in item 3 (Statement of Enrollment):

   a.  I understand that if I remain enrolled in the GI Bill of 1984 that $100.00 per month will be deducted from my basic pay for EACH of the first full 12 months of active duty and WILL NOT BE REFUNDED; 

   b.  I must complete 3 years of service before I am entitled to $300.00 per month for 36 months; and

   c.  I must use my benefits within 10 years of my separation or discharge from active duty.

4.  Records show he was advanced to the rank/grade of specialist (SPC)/E-4 on 1 August 1987.

5.  Item 21 (Time Lost) and Item 27 (Remarks) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he had time lost from
3 December 1991 to 11 June 1993.

6.  General Court-Martial Order Number 8, issued by Headquarters, 1st Armored Division, dated 11 February 1992, show he was charged with fourteen specifications for violating Article 123a (Checks, etc, insufficient funds, intent to deceive to procure anything of value) of the Uniform Code of Military Justice (UCMJ).  His pleas and findings were as follows:

	a.  Pled guilty and was found guilty of five specifications;

	b.  Pled not guilty and was found not guilty of six specifications; and 

	c.  Pled guilty with exception and substitution and was found guilty with exception and substitution of three specifications.

7.  On 3 December 1991, the military judge sentenced him to a bad conduct discharge, confinement for 2 years, forfeiture of $300.00 pay per month for
24 months, and reduction to private (PV1)/E-1.

8.  On 11 February 1992, the convening authority approved the sentence and except for that portion extending to a bad conduct discharge, ordered it executed.  

9.  On 6 November 1992, he was paroled from Fort Leavenworth, KS.

10.  On 22 February 1993, the U.S. Army Court of Military Appeals affirmed the decision of the U.S. Army Court of Military Review. 

11.  General Court-Martial Order Number 253, issued by the U.S. Disciplinary Barracks (USDB), Combined Arms Command (CAC), Fort Leavenworth, dated 25 May 1993, affirmed the sentence to a bad conduct discharge, forfeiture of $300.00 pay per month for 24 months, confinement for 2 years, and reduction to PV1/E-1, adjudged on 3 December 1991, as promulgated in General Court-Martial Order Number 8, dated 11 February 1992.  Article 71(c) having been complied with, the sentence was to be duly executed.

12.  General Court-Martial Order Number 306, issued by the USDB, CAC, Fort Leavenworth, dated 26 August 1993, rescinded General Court-Martial Order Number 253, having been erroneously published.

13.  General Court-Martial Order Number 76, issued by the USDB, CAC, Fort Leavenworth, dated 5 April 1994, affirmed the sentence to a bad conduct discharge, forfeiture of $300.00 pay per month for 24 months, confinement for
2 years, and reduction to PV1/E-1, adjudged on 3 December 1991, as promulgated in General Court-Martial Order Number 8, dated 11 February 1992.  Article 71(c) having been complied with, the sentence was to be duly executed.

14.  His DD Form 214 shows he was discharged from the Regular Army on 
11 June 1993, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-10, as a result of court-martial.  He received a bad conduct discharge.  Item 18 (Remarks) shows he had continuous honorable active service from "860909 - 911202."

15.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.

16.  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.

17.  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.

18.  Title 38, U.S. Code, chapter 30, established eligibility requirement for participation in the Veterans' Educational Assistance Act of 1984.  It provides that individuals, who entered an initial period of active duty on or after 1 July 1985 would be automatically enrolled in the program, unless they opted to disenroll within a specific time frame established by the individual services.  Once enrolled in the MGIB, the individual's basic pay was reduced by $100.00 per month for each of the first full 12 months of active duty and could not be refunded, suspended, or stopped.

DISCUSSION AND CONCLUSIONS:

1.  The applicant does not argue the appropriateness of the court-martial sentence or deny that he committed the offenses for which he was charged, only that he made restitution.  The evidence shows trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and his discharge appropriately characterizes the misconduct for which he was convicted.

2.  He further contends that if his discharge cannot be upgraded so he can use his educational benefits he should be refunded the $1,200.00 he paid into the MGIB.  His record indicates he enrolled in the MGIB during his period of service and he had continuous honorable active service from 9 September 1986 through 
2 December 1991; however, by law contributions to MGIB are non-refundable.  


Additionally, it has been more than 10 years from the date of his separation from active duty; therefore, his educational benefits are no longer available.  He has not provided any argument or documentary evidence showing he applied for his educational benefits and he was denied.  The Department of Veterans Affairs (VA) administers the MGIB program; therefore, it is recommended he contact the VA for further assistance on this matter.

3.  His service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

4.  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 his 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.

5.  In view of the foregoing, his 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)                                         AR20100020789



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ABCMR Record of Proceedings (cont)                                         AR20100020789



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