IN THE CASE OF:	  

		BOARD DATE:	    5 April 2011

		DOCKET NUMBER:  AR20100021833 


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, in effect, an upgrade of his bad conduct discharge (BCD) to a general discharge.

2.  He states his discharge should be upgraded due to the issuance of Department of Veterans Affairs (VA) Certificate of Eligibility which indicates his entitlement to an upgrade.  He also states the loan eligibility certificate is not issued under a BCD; therefore, an upgrade is promised.

3.  He provides:

* a completed DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States)
* a VA Certificate of Eligibility

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 2 October 1973 for a period of 4 years in pay grade E-1.  He completed training and he was awarded military occupational specialty 11B (Infantryman).

3.  On 28 November 1973, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to go at the time prescribed to his appointed place of duty on 25 November 1973.

4.  On 1 August 1975, he was convicted by a general court-martial of one specification of stealing, by means of force and violence, the currency of another Soldier on 5 February 1985 and one specification of stealing the property, a total value in excess of $200.00, of another Soldier on 16 January 1975.  He was sentenced to a reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement at hard labor for 3 years, and a BCD.

5.  On 20 October 1975, the convening authority approved the sentence and ordered him placed in confinement.

6.  On 18 November 1975, the uncollected portion of his sentence to forfeiture of pay and allowances in excess of $160.00 per month was suspended until such time as the sentence was ordered into execution, unless sooner vacated.

7.  On 9 July 1976, the U.S. Court of Military Reviewed affirmed the findings of guilty and so much of the applicant's sentence as provided for a BCD, confinement at hard labor for 2 years and 6 months, forfeiture of all pay and allowances, and reduction to pay grade E-1.

8.  He was released from confinement on an adjudged parole on 2 August 1976. 

9.  On 29 December 1976, the U.S. Court of Military Appeals denied his petition for a review of his case.

10.  On 12 January 1977, the appropriate authority ordered the sentence into execution.

11.  Accordingly, he was discharged in pay grade E-1 on 9 February 1977 under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), paragraph 11-2, as a result of a court-martial and issued a BCD.  He was credited with 1 year, 9 months, and 19 days of total active service with 559 days of time lost.

12.  He provided a VA Certificate of Eligibility for home, condominium, and mobile home loans, issued on 2 March 1977, which shows he was eligible for loan guaranty benefits administered by the VA.  This form does not indicate his eligibility for an upgrade of his BCD. 

13.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 11, paragraph 11-2, stated an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must have been completed and the sentence affirmed before it could be duly executed.

14.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for separation specifically allowed such characterization.

15.  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 change a court-martial 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 evidence of record shows the applicant was convicted by a general court-martial of committing robbery and larceny.  He was sentenced to a reduction, a forfeiture of all pay and allowances, 3 years confinement, and a BCD.  He was released from confinement on parole on 2 August 1976.  His sentence was reassessed affirming a reduction to E-1, 2 years and 6 months of confinement, total forfeitures, and a BCD.  He was discharged on 9 February 1977.

2.  Trial by a general court-martial was warranted by the gravity of the offenses charged.  A BCD is adjudged by a court-martial when it determines a Soldier should be separated for bad conduct.  A BCD was authorized for the offenses he was convicted for.

3.  He has not submitted evidence to show that his discharge is unjust.  There is no error or injustice apparent in his record.  He has not provided any sufficient evidence or argument to show his discharge should be upgraded to a general discharge.  He was properly discharged in accordance with pertinent regulations, with due process, and no violation of his rights.  

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.  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.  The documentation submitted by the applicant was carefully considered.  However, the issuance of a VA Certificate of Eligibility does not guarantee or entitle an individual to an automatic discharge upgrade.  Additionally, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  In view of the foregoing evidence, he is not entitled to an upgrade of his 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)                                         AR20100021833



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ABCMR Record of Proceedings (cont)                                         AR20100021833


   
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