BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110006183 


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 (BCD) to a general discharge so he may receive benefits from the Department of Veterans Affairs (DVA).

2.  The applicant states:

* the convening authority acknowledged an incident of prejudice during his court-martial and the fact that he had a great military career
* he performed his duties as a noncommissioned officer (NCO)
* he was not aware he was ineligible for benefits and burial by the DVA

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 on 1 February 1977.  He completed training and was initially awarded military occupational specialty (MOS) 75B (Personnel Administration Specialist).  He was awarded primary MOS 64C (Motor Transport Operator) on 12 April 1980 that was later converted to MOS 88M.  The highest rank/grade he attained while on active duty was sergeant (SGT)/E-5.

3.  Special Court-Martial Order Number 15, issued by Headquarters, 21st Theater Army Area Command, dated 7 March 1989, shows the applicant was found guilty pursuant to his pleas of the following offenses:

* being disrespectful towards a commissioned officer
* disobeying a lawful order from an NCO
* failing to go at the time prescribed to his appointed place of duty
* wrongfully and unlawfully writing insufficient checks totaling $1,200.00
* being drunk and disorderly

4.  The following sentence was adjudged:

* a BCD
* reduction to the lowest enlisted grade
* confinement for 9 months
* forfeiture of all pay and allowances

5.  A review of the applicant's Record of Trial fails to show any incident of prejudice against the applicant.

6.  Special Court-Martial Order Number 588, dated 29 June 1989, remitted the unexecuted portion of the approved sentence to confinement.

7.  On 10 August 1989, the U.S. Army Court of Military Review affirmed the sentence.

8.  On 27 September 1989, the appropriate authority ordered the BCD duly executed.  

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 11 October 1989 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel),
chapter 3, as a result of court-martial with a character of service as bad conduct.

10.  The applicant provided a DD Form 293 in which he stated, in effect,

* he was wrong on some of his charges; however, some of the charges were dismissed
* his commander had a personal vendetta against him and was the only one testifying against him
* individuals within his command did not want to jeopardize their careers; therefore, he received no support
* he was used as an example
* he had no trust in his military counsel and he was not fully supported by his legal counsel; therefore, he had to seek outside assistance

11.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  It provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

12.  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.

13.  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.

14.  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 contends the convening authority acknowledged an incident of prejudice during his court-martial; however, the applicant's Record of Trial does not contain any such acknowledgment of prejudice.  The convening authority presented the applicant's commander with a series of questions regarding the applicant's behavior and misconduct.  It appears the applicant may have believed his commander's testimony was prejudicial because she testified she had been in command for 4 months and his troubles began prior to her arrival as commander.  The applicant's defense counsel raised no issues of prejudice during his court-martial.  Therefore, the applicant's contention of prejudice during his court-martial is without merit.

2.  The applicant's trial by court-martial was warranted by the nature of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations.  Further, the applicant consulted with legal counsel and admitted guilt to the offenses with which he was charged.

3.  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 applicant's 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.

4.  The ABCMR does not grant requests for discharge upgrades 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.  Additionally, granting of veterans' benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the DVA.

5.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general 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)                                         AR20110006183



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ABCMR Record of Proceedings (cont)                                         AR20110006183



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