IN THE CASE OF:	  

		BOARD DATE:  16 February 2012

		DOCKET NUMBER:  AR20110016152 


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 that his bad conduct discharge be upgraded to honorable.

2.  The applicant states he is unable to continue to work due to medical disabilities he acquired during his honorable active service in the Persian Gulf War and during his honorable active service from 25 June 1980 to 16 August 2001.  He believes his discharge was unjust due to the fact that he cannot receive Department of Veterans Affairs (DVA) service connected disability compensation and considering he had over 20 years of continuous honorable active service.  He was retirement eligible at the time with no record of punishment under the Uniform Code of Military Justice.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and a memorandum, Subject:  Transmittal of Court-Martial Charges for United States v. Sergeant First Class [SFC] E.R.H.

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 states in his application that he provided as evidence a DVA claim; however, it appears this document was not included with his application.

3.  The applicant enlisted in the Regular Army on 25 June 1980 and continued his service on active duty through a series of reenlistments.  He was promoted to SFC/E-7 on 1 November 1996.

4.  On 16 August 2002, he was convicted by a general court-martial of:

	a.  making a false official statement with the intent to deceive;

	b.  stealing one "ANCYZ-10 V3", military property of a value of more than $100.00;

	c.  wrongfully endeavor to influence testimony of private first class (PFC) P., as a witness in the Criminal Investigation Division investigation, by addressing PFC P. in a threatening manner;

	d.  wrongfully endeavor to influence testimony of specialist (SPC) B., as a witness in the Criminal Investigation Division investigation, by ordering SPC B. to state to investigators that they stopped at Texas Lake because PFC M. needed to urinate.

5.  He was sentenced to forfeit all pay and allowances, reduction to the rank of private/E-1, confinement for 77 days, and to be discharged from the service with a bad conduct discharge.  On 15 January 2003, the sentence was approved.

6.  On 23 December 2005, the findings were affirmed.  The court affirmed only so much of the sentence as provided for a bad conduct discharge, confinement for 77 days, and reduction to private/E-1.

7.  On 15 June 2006, the sentence having been affirmed and the provisions of Article 71c having been complied with, the bad conduct discharge was ordered executed.

8.  Accordingly, he was discharged on 15 November 2006 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of court-martial with a bad conduct discharge.
9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates 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 affirmed before the sentence was ordered duly executed.

10.  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.

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.  

12.  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 discharge has been carefully considered.  However, the ABCMR does not upgrade discharges for the sole purpose of enabling an individual to obtain DVA medical or employment benefits.

2.  His prior honorable service was noted; however, the trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized 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 seriousness of his criminal offenses and absent sufficient mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

4.  Based on his misconduct, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general discharge.  Additionally, he has not presented evidence of post-service conduct sufficient to warrant an upgrade as a matter of equity.

5.  In view of the above, 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)                                         AR20110016152



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ABCMR Record of Proceedings (cont)                                         AR20110016152



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