IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120002859 


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 a personal appearance before the Board to seek a discharge upgrade from Bad Conduct (BCD) to Honorable (HD).

2.  The applicant states:

* he was awarded 3 Good Conduct Medals during his service
* he was court-martialed for breaking and entering, but he was found not guilty of all charges
* he was singled-out for no reason by his first sergeant and this led to his discharge
* he tried filing for clemency immediately after discharge, but he never received a response
* he needs Department of Veterans Affairs (VA) treatment because of a privately-owned vehicle (POV) accident in 1987 from which he suffers residuals from his injuries
* many favorable documents are missing from his military personnel records
* he encounters confusion regarding his identity

3.  The applicant provides:

* self-authored statements
* DA Form 2-1 (Personnel Qualification Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)


* Standard Form (SF) 93 (Report of Medical History)
* Page 1 of his DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))

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 complete military record is not available, nor is his record of trial (ROT).  However, the applicant provides sufficient documents to conduct a fair and impartial review of his case.

3.  The applicant's DA Form 2-1 shows the following:

* he enlisted in the Regular Army on 24 June 1980
* his military occupational specialty was 19D (Cavalry Scout)
* his highest rank/grade was specialist four/E-4
* on 26 October 1980, he was arrested by Georgia civilian authorities for driving under the influence, driving without a license, resisting arrest, and damaging State property
* he was fined $445 and released on 27 October 1980

4.  The applicant provides an SF 93, dated 18 July 1986, in which he indicates he still takes Motrin for back problems resulting from his POV accident.

5.  The applicant provides page 1 of his DA Form 2627, dated 30 October 1986, which shows he did, on or about 23 June 1986 and 22 July 1986, wrongfully use cocaine at Fort Bliss, TX, a U.S. military installation.



6.  The applicant's DD Form 214 shows the following:

* he was discharged with a BCD on 18 August 1987 as a result of court-martial conviction
* he completed 7 years, 1 month, and 25 days of credible active military service, with 2 years, 1 month, and 14 days of foreign service
* he had a period of excess leave of 267 days for the period 22 November 1986 to 18 August 1987

7.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an HD 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states that a General Discharge (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 HD.

	c.  Paragraph 3-11 states a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

8.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires. 

9.  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 was carefully considered and determined to lack merit.

2.  Although the applicant requested a personal appearance before the ABCMR, there is no statutory or regulatory right to a formal hearing.  In this case, it was determined that a records review to be sufficient.

3.  BCDs may only be given pursuant to an approved sentence of a general or special court-martial.  The applicant admits he was court-martialed, but alleges he was found not guilty.  The fact he was discharged with a BCD contradicts that allegation.

4.  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 known record of misconduct (cocaine use) and absent any mitigating factors or actual facts concerning his court-martial conviction, the type of discharge directed and the reasons therefore are considered appropriate.  The applicant has failed to provide sufficient evidence to merit an upgrade of his discharge as a matter of equity.  As a result, clemency is not warranted in this case.

5.  The ABCMR does not grant discharge upgrades solely for the purpose of eligibility for veterans' benefits.

6.  Based on the foregoing, there is an insufficient evidentiary basis for granting the applicant a discharge upgrade.

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)                                         AR20120002859



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120002859



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1