IN THE CASE OF:	  

		BOARD DATE:  24 January 2013

		DOCKET NUMBER:  AR20120011501 


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 to an honorable discharge.

2.  The applicant states he was told at the time of his discharge his bad conduct discharge would be upgraded to an honorable discharge.

3.  The applicant provides no additional evidence in support of his application.

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.  He enlisted in the Regular Army on 26 June 1985.  He completed basic combat and advanced individual training and was awarded military occupational specialty 12C (Bridge Crewmember).  On 28 October 1985, he was assigned to the 10th Engineer Battalion in Germany.  He immediately reenlisted on 
15 December 1988.  

3.  On 6 September 1991, before a general court-martial he pled not guilty but was found guilty of:

* wrongful distribution of marijuana
* assault consummated by a battery
* aggravated assault with a knife likely to produce grievous bodily harm
* two specifications of wrongfully communicating a threat

4.  His sentence consisted of:

* reduction to private E-1
* forfeiture of all pay and allowances
* confinement for 6 months
* issuance of a bad conduct discharge

5.  On 20 December 1991, the convening authority approved the sentence.

6.  On 28 January 1993, the findings of guilty and the sentence were affirmed by the U.S. Army Court of Military Review.

7.  On 10 June 1993, his discharge was ordered executed and on 8 July 1993 he was discharged with a bad conduct discharge as a result of his court-martial conviction.  He had continuous honorable service from 26 June 1985 to 
14 December 1988.  

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  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.  

	c.  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.  

	d.  When a Soldier is accepted for immediate reenlistment he will be discharged and reenlisted on the day following discharge.  The service of a Soldier discharged under this provision will be characterized as honorable unless entry-level separation is required.

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.    He contends he was told at the time of his discharge his bad conduct discharge would be upgraded to an honorable discharge.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

2.  The evidence shows the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

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.  The applicant's entire record of service was considered.  He received an honorable discharge for his period of service ending 14 December 1988.  However, his service since his immediate reenlistment is clearly unsatisfactory.  There is no record or documentary evidence of acts of valor.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request at this time.  

5.  Based on the foregoing, there is an insufficient basis to upgrade his bad conduct discharge to an honorable discharge or to a general discharge under honorable conditions.

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)                                         AR20120011501



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ABCMR Record of Proceedings (cont)                                         AR20120011501



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