BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100022299 


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, in effect, his current discharge keeps him from receiving benefits through the Department of Veterans Affairs.  He is working fulltime to support his family but the benefits of healthcare are cost prohibitive.  He has been a model citizen and has not been in trouble since his discharge.  He was young, immature, away from home and he was negatively impacted by some other individuals.  He has since grown up and he has led his life in a positive fashion.  He is embarrassed by his discharge and he wants it upgraded so that he will not be affected by the stigma of bad behavior 20 years ago.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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's records show he was 18 years and 6 months old when he enlisted in the Regular Army on 14 August 1984.  He held military occupational specialty 26L (Tactical Microwave Systems Repairman).

3.  On 18 September 1985, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being drunk on duty.

4.  On 10 October 1985, a DA Form 4126-R (Bar to Reenlistment Certificate) was placed against him for being drunk on duty.  

5.  On 8 November 1985, he was found guilty by a general court-martial of one specification of wrongful distribution of cocaine on 10 July 1985, one specification of wrongful distribution of cocaine on 30 July 1985, and one specification of wrongful possession and use of marijuana on 30 July 1985.   He was sentenced to 9 months in confinement, a forfeiture of all pay and allowances, and a bad conduct discharge.

6.  On 19 December 1985, the convening authority approved the sentence and except for the bad conduct discharge ordered it executed.  

7.  On 28 February 1986, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 493, dated 8 July 1986, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed.

9.  On 25 July 1986, he was discharged from the Army.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of court-martial with a bad conduct discharge.  This form further shows he completed 1 year, 3 months, and 25 days of creditable military service with 224 days of lost time due to being in confinement and 12 days of excess leave.

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 evidence of record shows his trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  After a review of the applicant's record of service, it is clear his service did not meet the criteria for an honorable discharge or a general under honorable conditions discharge.  Therefore, there is insufficient basis to upgrade his discharge.

3.  Records show he was 19 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

4.  The ABCMR does not grant requests for an upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her 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)                                         AR20100022299



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ABCMR Record of Proceedings (cont)                                         AR20100022299



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