BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110008606 


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 (GD), under honorable conditions. 

2.  He states he served over 7 years in the Army before he made a bad mistake which cost him his career.  He believes the punishment has served its intended purpose and now desires an upgrade of his discharge due to serious medical conditions and his need for Department of Veterans Affairs (VA) benefits.   

3.  He did not provide any additional documentation.  

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.  His record shows he enlisted in the Regular Army on 18 January 1977.  He served in military occupational specialty 94B (Food Service Specialist) and the highest rank/grade he attained while serving on active duty was Specialist Five/E-5.

3.  On 24 May 1984, the applicant was convicted by special court-martial, pursuant to his plea, of assault by cutting another Soldier several times with a piece of glass.  He was sentenced to a BCD, 4 months military confinement with hard labor, forfeiture of $150 for 4 months, and reduction to private/E-1.  

4.  The portions of the sentence pertaining to forfeiture of pay and confinement were reduced by one month and the remaining portions of the sentence were approved and ordered executed except for the portion pertaining to the BCD.   

5.  On 22 October 1984, the U.S. Army Court of Military Review affirmed the court-martial's findings and the sentence.

6.  The sentence having been affirmed, on 30 January 1985 the sentence was ordered executed.

7.  Accordingly, on 30 April 1985, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of a court-martial with a BCD.  He had completed 8 years and 
16 days of net active service.

8.  His record documents no acts of valor or achievements which warrant special recognition.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his BCD was carefully considered; however, in the absence of evidence of error or injustice, it is without merit.

2.  Trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable law and his rights were fully protected.  His BCD appropriately characterizes the misconduct for which he was convicted.

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.  His need for benefits due to his current health condition has also been noted.  The ABCMR does not upgrade discharges to make one eligible for VA benefits.  In view of the foregoing, the evidence does not warrant the 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)                                         AR20110008606





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ABCMR Record of Proceedings (cont)                                         AR20110008606



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