BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120012819 


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.  He states he made some mistakes during his military career and has suffered from those mistakes as they prevented him from being able to use the benefits for which he joined the military.  He humbly requests review and upgrade of his discharge.  

3.  He provides 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.  His military records show he enlisted in the Regular Army on 17 May 1983.  He completed training and was awarded the military occupational specialty of 31M (multi-channel communication system operator).  The highest rank/grade he held is unknown.

3.  Records show he accepted nonjudicial punishment (NJP) on three separate occasions for offenses including violating a lawful general regulation by purchasing at various Korea exchanges coffee, beer, and liquor in excess of the quantity limitations prescribed and on three occasions failing to go at the time prescribed to his appointed place of duty.

4.  On 12 February 1988, pursuant to his plea of guilty the applicant was convicted by a general court-martial of:

* wrongfully appropriating personal checks and about $260.00 in U.S. currency, the property of Specialist KCH 
* with the intent to defraud falsely making the signature of second lieutenant KAJ to a certain credit card transaction voucher
* with the intent to defraud, falsely making in its entirety, certain personal checks of Specialist KCH, which checks would if genuine, operate to the legal harm of another

5.  The convening authority approved only so much of the sentence as provided for a bad-conduct discharge.

6.  His record contains a DD Form 214 that shows that on 2 November 1989 he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV.  Item 28 (Narrative Reason for Separation) contains the entry "as a result of court-martial, other."  He was given a bad conduct discharge.  His DD Form 214 shows he completed 6 years, 5 months, and 10 days of total creditable active military service with time lost from 10 January to 15 January 1987.

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

	a.  Paragraph 3-11 of this regulation provides that a Soldier will be given a bad conduct discharge 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.



	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

8.  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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received NJP on three occasions.  He was issued a bad conduct discharge pursuant to the approved sentence of a general court-martial.

2.  The Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Therefore, it is presumed that the appellate review was completed, the affirmed sentence ordered executed, and the conviction and discharge were effected in accordance with applicable laws and regulations in effect at the time.

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.  Notwithstanding his acknowledgment of his mistakes and 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.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

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

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)                                         AR20120012819



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ABCMR Record of Proceedings (cont)                                         AR20120012819



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