IN THE CASE OF:	   

		BOARD DATE:	  15 November 2012

		DOCKET NUMBER:  AR20120008426 


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 (BCD) be upgraded to a general discharge.

2.  The applicant states his discharge was unjust when considering his duties as a parachute rigger over his 13 years of service.  He also states it was unjust given the health issues he developed over his years of service and given that his health is declining and he has no health insurance and cannot afford the medicines he needs.  He continues by stating he desires a hearing before the Board in Memphis, Tennessee because he cannot afford to travel to Washington, D.C.  He also states he served his country and now his country needs to help him.  

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

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 13 April 1976 for a period of 3 years, training as a parachute rigger, and assignment to Fort Benning, Georgia.  He completed his basic training at Fort Jackson, South Carolina, his airborne training at Fort Benning, and his advanced individual training at Fort Lee, Virginia before being assigned to Fort Benning. 

2.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-6 on 1 September 1986.
3.  On 22 February 1988, the applicant received a general officer memorandum of reprimand (GOMOR) for driving under the influence (DUI).  

4.  On 26 February 1988, field grade nonjudicial punishment was imposed against him for the wrongful use of cocaine.  

5.  On 26 September 1988, he was convicted pursuant to his plea by a special court-martial of making and uttering 28 worthless checks in amounts ranging from $21.00 to 150.00.  He was sentenced to confinement for 3 months, a forfeiture of pay, reduction to the pay grade of E-1, and a BCD.

6.  On 10 July 1989, orders were published indicating that the findings and sentence as approved by the convening authority had been affirmed and directed that his BCD be executed. 

7.  On 19 July 1989, he was discharged pursuant to a duly-reviewed and affirmed court-martial conviction.  He had served 13 years, 3 months, and 9 days of total active service.

8.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  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.  

10.  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.

11.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  It provides, in pertinent part, that applicant’s do not have a right to a hearing before the ABCMR.  The director or the ABCMR may grant a formal hearing whenever justice requires.  However, the ABCMR does not conduct travel panels as does the ADRB.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

2.  The applicant’s contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense.

3.  Accordingly, his punishment was not disproportionate to the offenses for which he was convicted and he has failed to provide sufficient reasons to warrant an upgrade of his discharge based on clemency.  

4.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  Based on the available evidence and facts in this case it was determined no formal hearing is required.

5.  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 absence of any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.  

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)                                         AR20120008426





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ABCMR Record of Proceedings (cont)                                         AR20120008426



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