IN THE CASE OF:	  

		BOARD DATE:	  6 September 2012

		DOCKET NUMBER:  AR20120003805 


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 an upgrade of his bad conduct discharge.

2.  The applicant states he has the disease of alcoholism.  He is sober today and on a path to recovery.  He is seeking to qualify for veterans' benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

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 enlisted in the New York Army National Guard on 24 May 1976 for a period of 6 years.

3.  A DD Form 214 shows he was ordered to active duty for training (ADT) on 5 September 1976.

	a.  He completed training and was awarded military occupational specialty 76D (Materiel Supplyman).

	b.  He was honorably released from ADT on 18 February 1977 and reverted to the control of the New York ARNG.  He completed 5 months and 14 days of active service during this period.

4.  The applicant was ordered to active duty 26 June 1978.

5.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

	a.  item 21 (Time Lost) that he had lost time from 1 July through 20 August 1978 and

	b.  item 35 (Record of Assignments) that he was absent without leave (AWOL) from 1 July to 21 August 1978.

6.  The applicant was tried by a general court-martial for the charge and specification of larceny (of a total value of about $1,608.00) and the charge and specification of unlawful entry with intent to commit a criminal offense (larceny).

	a.  He pled guilty to the charges and specifications and was found guilty.

	b.  On 28 March 1980, he was sentenced to confinement at hard labor for 3 years and a bad conduct discharge.

7.  On 2 May 1980, the convening authority approved the sentence, but execution of that portion of the sentence adjudging confinement at hard labor in excess of 1 year and 1 day was suspended for 6 months, to be remitted at that time.  He ordered the applicant's confinement in the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, and directed forwarding the record of trial to The Judge Advocate General of the Army for review by a U.S. Army Court of Military Review.

8.  On 29 August 1980, the U.S. Army Court of Military Review affirmed the findings and the sentence as approved by the convening authority.

9.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 79, dated 27 January 1981, confirmed the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, and that portion of the sentence pertaining to confinement at hard labor having been served, the sentence was ordered duly executed.

10.  The applicant's DD Form 214 shows he was discharged on 23 February 1981 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2, with a bad conduct character of service.

	a.  He completed 2 years, 8 months, and 29 days of net active service during this period.

	b.  Item 18 (Remarks) shows:

* time lost under Title 10, U.S. Code, section 972, from 1 July through 20 August 1978
* time lost after his normal expiration of term of service from 28 March 1980 through 6 January 1981
* excess leave from 7 January through 23 February 1981

11.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that 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.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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.

	c.  Paragraph 11-2 provides that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of the appellate review and after such affirmed sentence had been ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded because he has the disease of alcoholism and is seeking to qualify for veterans' benefits.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and bad conduct discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

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.

4.  Based on the evidence of record, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

6.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs or appropriate government agency.

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 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)                                         AR20120003805



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ABCMR Record of Proceedings (cont)                                         AR20120003805



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