IN THE CASE OF:	  

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100026895 


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 an upgrade of his bad conduct discharge.

2.  The applicant states he has been a model citizen for the past 28 years since his discharge.  He also states he is trying to receive Department of Veterans Affairs (VA) benefits.

3.  The applicant did not provide any additional documentary evidence in support of his 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.  The applicant enlisted in the Regular Army for a period 3 years on                22 February 1973.  He completed basic combat and advanced individual training and was awarded military occupational specialty 71L (Administration Specialist).  The highest rank/grade he attained during this period was specialist five/pay grade E-5.  On 17 February 1976, the applicant was honorably released from active duty from the U.S. Army.

3. The applicant’s records show he again enlisted in the Regular Army for a period of 4 years on 20 April 1979.  The highest rank/grade he attained during this period was specialist/pay grade E-4. 

4.  On 25 August 1981, the applicant accepted nonjudical punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCM) for being drunk and disorderly, resisting arrest and assault.  His punishment consisted of a reduction to private first class/pay grade E-3 (suspended for 180 days), forfeiture of $100 pay (suspended for 180 days), and 14 days extra duty.

5.  On 1 April 1982, the applicant was convicted by a special court-martial of two specifications of stealing from another Soldier, one specification of wrongfully selling marijuana, and one specification of wrongfully possessing marijuana.   The court sentenced him to be confined at hard labor for 180 days, to forfeit $250.00 pay per month for 6 months, to be reduced to private/pay grade E-1 and to be discharged from the U.S. Army with a bad conduct discharge.

6.  On 17 August 1983, the U.S. Army Court of Military Review found that the sentence was correct in law and fact and affirmed the findings and sentence.

7.  U.S. Army Correctional Activity, Fort Riley, KS, Special Court-Martial Order Number 47, dated 7 February 1984, directed the BCD be executed.

8.  On 21 February 1984, the applicant was separated from the Army with a bad conduct discharge under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations) as a result of conviction by court-martial.  He completed a total of 6 years, 6 months, and 26 days of creditable active service with lost time due to confinement from 1 April 1982 to 30 June 1982.

9.  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.

	
10.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

11.  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

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  By law, the ABCMR may not disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

3.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of establishing eligibility for veterans' or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The granting of veterans' benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.  Good post service citizenship, while commendable, does not form a sole basis for upgrade.

4.  The applicant's entire record of service was considered in this case.  Given the seriousness of the offenses for which he was convicted, there is an insufficient basis to warrant the relief requested.




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)                                         AR20100026895





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ABCMR Record of Proceedings (cont)                                         AR20100026895



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