IN THE CASE OF:	  

		BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110019286 


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, in effect, that his Bad Conduct Discharge (BCD) be upgraded to a General Discharge (GD), under honorable conditions in order to receive Department of Veterans Affairs (VA) medical benefits. 

2.  He states he was raised in a foster home and was kicked out of school for fighting.  He went on to earn the General Educational Development (GED) certificate and talked to an Army recruiter about enlisting in the service. 

3.  He never intended to join the service, but because of his expulsion from school, he made a rash decision and joined the Army when he was only 17 years old.  He also started using drugs and became addicted.  He made some wrong decisions which resulted in a general court-martial.  

4.  He contends he was not ready for responsibility and that his superiors and the Army did not provide him the help or counseling he needed.  As a result, he was court-martialed and left with a BCD.  He still loves and respects the Armed Forces and regrets that he did not serve his country honorably.  

5.  The applicant provides various certificates. 

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.  He enlisted in the Regular Army on 22 January 1985.  He served in military occupational specialty 13B (Cannon Crewman) and the highest rank/grade he attained while serving on active duty was Private/E-2.

3.  His military personnel record does not show he earned any special recognition or had any significant accomplishments.

4.  On 27 March 1986, he was convicted by a general court-martial for the following:

* Forgery of a check in the amount of $50,000.00 on 6 December 1985
* Larceny of $50,000.00 and $700.00 during the period 7 through 
   9 December 1985

5.  His sentence included a BCD, confinement for 2 years, forfeiture of all pay and allowances, and reduction to private/E-1.  On 13 June 1986, he was credited with serving 58 days of confinement toward his sentence.  The remaining portions of the sentence were approved and ordered executed except for the portion pertaining to the BCD.

6.  On 6 August 1986, the U.S. Army Court of Military Review affirmed the findings and the sentence.

7.  U.S. Army Correctional Activity, General Court-Martial Order Number 867, dated 2 December 1986, ordered his BCD executed.

8.  Accordingly, on 16 January 1987, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-11, as a result of a court-martial with a BCD.  He had completed 
1 year and 6 days of net active service.



9.  The applicant provided numerous certificates which show he:

* Earned his GED on 15 November 1984
* Participated as a referee in a basketball tournament
* Completed a technical introduction to computer-aided drafting on 
    21 August 2009
* Successfully completed the Changes II Program on 26 January 2010

10.  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.

11.  Army Regulation 635-200 also provides that a GD 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 BCD was carefully considered; however, in the absence of evidence of error or injustice, it does not show merit.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  His conviction, sentence, and discharge were effected in accordance with applicable law and regulations and the discharge 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.  However, the ABCMR does not upgrade discharges solely for the purpose of making one eligible for VA benefits.  

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)                                         AR20110019286



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ABCMR Record of Proceedings (cont)                                         AR20110019286



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