IN THE CASE OF:	  

		BOARD DATE:  21 June 2012

		DOCKET NUMBER:  AR20110025207 


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.

2.  The applicant states he would like his discharge upgraded so he can receive Department of the Veterans Affairs (VA) benefits.  He had a drinking problem which led to the charges against him.  He is currently in the Salvation Army rehabilitation program, has been clean for 6 months, and is now getting help for his drinking and drug [problem].  

3.  The applicant provides no additional evidence.

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 2 October 1984 and he held military occupational specialty 76Y (Unit Supply Specialist).  He was assigned to the 14th Battalion, 4th Brigade, Fort Jackson, SC, on 28 February 1985.

3.  On 6 August 1985, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for unlawfully drinking liquor with two trainees who were under his charge.

4.  On 13 December 1985, he was convicted by a special court-martial of one specification each of:

* Wrongfully possessing an open container of wine
* Damaging a military truck through neglect
* Operating a vehicle while drunk and in a reckless manner resulting in personal injury
* Being drunk on duty while in charge of a detail of trainees
* Stealing three traveler's checks, the property of another Soldier
* Wrongfully appropriating a military truck
* Two specifications of falsely signing stolen traveler's checks

He was sentenced to 6 months confinement, forfeiture of $426.00 a month for 6 months, reduction to private (PVT)/E-1, and a bad conduct discharge. 

5.  On 28 February 1986, the convening authority approved only so much of the sentence as provided for 4 months confinement, forfeiture of $426.00 a month for 4 months, reduction to PVT, and a bad conduct discharge, and except for the bad conduct discharge ordered it executed.  

6.  On 29 August 1986, the U.S. Army Court of Military Review ruled on the applicant's appeal request, dismissed one specification of falsely signing stolen traveler's checks, amended the wording of the specification of wrongfully possessing an open container of wine, and affirmed the sentence.

7.  Special Court-Martial Order Number 225, dated 3 December 1986, issued by the U.S. Army Correctional Activity, Fort Riley, KS, shows that as the applicant's sentence had been affirmed and complied with, the convening authority ordered his bad conduct discharge executed.

8.  On 15 December 1986, he was discharged from the Army.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 3, as a result of court-martial, with a bad conduct characterization of service.  He completed 1 year, 11 months, and 5 days of active service with 129 days of time lost due to confinement.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  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.

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 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)                                         AR20110025207





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ABCMR Record of Proceedings (cont)                                         AR20110025207



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