IN THE CASE OF:	  

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110024265 


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 his bad conduct discharge be upgraded to a general discharge.

2.  The applicant states, in effect, he has not been able to overcome the adverse effects of his discharge and he is in need of Department of Veterans Affairs (VA) health care.

3.  The applicant provides his DD Form 214 (Report of Separation 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's records show he enlisted in the Regular Army on 12 January 1970 and he held military occupational specialty 94B (Cook).  He was awarded the National Defense Service Medal and Armed Forces Expeditionary Medal.

3.  On 9 November 1970, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using a meal card that did not belong to him.

4.  On 14 September 1971, he received NJP under the provisions of Article 15, UCMJ, for failing to report to his appointed place of duty.

5.  On 15 October 1971, he was reported absent without leave (AWOL) from his assigned unit and he was dropped from the rolls on 14 November 1971.

6.  On 14 March 1972, he was returned to military control at Fort Knox, KY.

7.  On 21 August 1972, he was convicted by a special court-martial of one specification each of wrongfully possessing marijuana and wrongfully selling marijuana.  He was sentenced to 6 months in confinement, a forfeiture of $192.00 pay for 6 months, and a bad conduct discharge.

8.  On 9 May 1973, the convening authority approved the sentence, except for 3 months of confinement was suspended for 3 months, and except for the bad conduct discharge the sentence was ordered executed.  

9.  On 31 October 1973, he received NJP under the provisions of Article 15, UCMJ, for wrongfully possessing stolen property.

10.  Special Court-Martial Order Number 3, dated 24 April 1974, issued by the U.S. Army Administration Center and Fort Benjamin Harrison, IN, shows his sentence had been affirmed and the convening authority ordered the applicant's bad conduct discharge executed.

11.  On 22 May 1974, he was discharged from the Army.  The DD Form 214 he was issued shows his characterization of service as "under conditions other than honorable."  He completed 3 years, 8 months, and 9 days of creditable military service with 242 days of time lost due to being AWOL and in confinement.

12.  His records contain a letter, dated 22 May 1974, issued by the U.S. Army Administration Center, Fort Benjamin Harrison, IN, wherein it shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), as a result of court-martial.

13.  On 20 March 1975 and 24 March 1976, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and determined his discharge was both proper and equitable.

14.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  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.

15.  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.

16.  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 evidence of record shows the applicant's trial by a special court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations, and his discharge appropriately characterized the misconduct for which he was convicted.  

2.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  After a review of his record of service, it is clear his service did not meet the criteria for an honorable or a general discharge, or any other characterization of service other than the one he received.  Therefore, he is not entitled to 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)                                         AR20110024265



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ABCMR Record of Proceedings (cont)                                         AR20110024265



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