BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20110006433 


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 a general discharge.  He also requests to appear before the Board.

2.  The applicant states:

* he was only involved in one fight with a man who refused to repay a loan and who used a racial epithet
* after he spent 6 months in the disciplinary barracks the Army sent him to Fort Dix, NJ to train new recruits
* he recently started looking for employment

3.  In a letter, dated 1 March 2011, he states:

* he was court-martialed 31 years ago when he was 24 years old
* the Army still had confidence in him since he was sent to Fort Dix to train new recruits
* he did not challenge the label "Bad Conduct" at the time of his discharge because he did not realize how far-reaching and damaging it would prove to be
* he did not know a bad conduct discharge was the same as a dishonorable discharge
* he is looking for employment and the phrase "Bad Conduct" is a significant barrier
* he has been denied medical assistance through the Department of Veterans Affairs (VA) even though the knee injury he sustained took place while he was on active duty in the Army
* he believes he has been unfairly treated

4.  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 was born on 19 October 1956.  He enlisted in the Regular Army on 6 November 1979 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 11C (indirect fire infantryman).

3.  On 25 November 1980, he was convicted by a special court-martial of disobeying a lawful command and communicating a threat against a second lieutenant.  He was sentenced to be reduced to pay grade E-1, to be confined at hard labor for 4 months, to forfeit $200.00 pay per month for 4 months, and to be discharged from the service with a bad conduct discharge.  On 6 January 1981, the convening authority approved the sentence.

4.  On 9 April 1981, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  On 29 June 1981, the U.S. Court of Military Appeals denied the applicant's petition for grant of review.  On 27 July 1981, the convening authority ordered the bad conduct discharge to be executed.

5.  On 27 July 1981, nonjudicial punishment (NJP) was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty. 


6.  He was discharged with a bad conduct discharge on 11 August 1981 under the provisions of Army Regulation 635-200, chapter 11, as a result of a court-martial.  He had served 1 year, 4 months, and 19 days of creditable active service with 138 days of time lost.

7.  On 29 July 1982, the Army Discharge Review Board denied his request for a discharge upgrade.

8.  On 7 March 1984, the ABCMR denied his request for upgrade of his bad conduct discharge to an honorable discharge.

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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.

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  His record of service included one NJP, one special court-martial conviction, and 138 days of time lost.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  His contention he was only involved in one fight with a man who refused to repay a loan and who used a racial epithet relates to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.  

4.  He contends he is now looking for employment and the bad conduct discharge is a significant barrier.  However, discharges are not upgraded for the purpose of enhancing employment opportunities.

5.  He contends he has been denied medical assistance through the VA.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible 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.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

6.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

7.  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.

8.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110006433



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110006433



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1