IN THE CASE OF:	  

		BOARD DATE:	  17 January 2013

		DOCKET NUMBER:  AR20120009800 


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, in effect, an upgrade of his bad conduct discharge (BCD) to a general discharge (GD).

2.  The applicant states he was informed by the officer representing him during his trial, and prior to signing a plea agreement, that he would be eligible for school and housing benefits.  He contributed to the Veterans Educational Assistance Program and was approved for a Department of Veterans Affairs (VA) home loan.  He received an enlistment bonus for a 4-year enlistment.  He contends it has been hard for him to obtain employment and medical assistance.  He was proud to enlist in the U.S. Army and he regrets not spending his entire life in the military.  It was the best thing that ever happened to him.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge 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 enlisted in the Regular Army on 11 June 1985.  After completing the training requirements he was awarded military occupational specialty 13F (Fire Support Specialist).

3.  Headquarters, 7th Infantry Division (Light), Fort Ord, CA, issued Special Court-Martial Order Number 41, dated 31 May 1988, showing he was found guilty of one specification of wrongfully distributing hashish on 1 September 1987.  He pled not guilty to two additional specifications of the same offense and those charges were dismissed.  He was sentenced to confinement for 4 months, a forfeiture of $447.00 pay for 4 months, reduction to the lowest enlisted grade (private/E-1), and a BCD.  Only so much of the sentence as provided for confinement for 45 days, a forfeiture of $447.00 pay for 2 months, reduction to the lowest enlisted grade, and a BCD was approved, and except for that portion extending to the BCD was executed.

4.  His record contains the following documents issued by Headquarters, U.S. Army Personnel Control Facility (USAPCF), U.S. Army Armor Center, Fort Knox, KY:

	a.  A memorandum, dated 28 August 1988, showing he was absent without leave (AWOL) from 15 July 1988 through 28 August 1988.

   b.  Orders Number 164-11, dated 6 September 1988, which assigned him to the USAPCF effective 29 August 1988.  The additional instructions show he surrendered to military authorities on the above effective date.
   
   c.  A DA Form 31 (Request and Authority for Leave), dated 29 August 1988, which placed him in an indefinite excess leave status pending appellate review of his sentence to a BCD.

	d.  Special Court-Martial Orders Number 36, dated 23 February 1989, which affirmed his sentence and ordered his BCD to be executed.

5.  On 23 March 1989, he was discharged as directed.


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

   a.  Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable or BCD) pursuant only to an approved sentence to a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.
   
   b.  Paragraph 3-7b provides that a 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 honorable discharge.

7.  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 does not support the applicant's request for an upgrade of his BCD.

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA benefits.

3.  In May 1988, he was convicted of one specification of wrongful distribution of hashish.  Further, the evidence shows that after serving his confinement and while pending an appellate review of his sentence he went AWOL for 44 days.  

4.  Although he states he did not understand the ramifications of pleading guilty to the charges and specifications, the record does not show, nor has the applicant provided evidence showing, that he was not properly informed his conviction would make him ineligible for many or all benefits administered by the VA.

5.  Absent evidence to the contrary, his conviction and sentence by special court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. 
6.  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.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

7.  In view of the foregoing, his request should be denied.

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)                                         AR20120009800



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ABCMR Record of Proceedings (cont)                                         AR20120009800



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