IN THE CASE OF:	  

		BOARD DATE:	  10 July 2014

		DOCKET NUMBER:  AR20130020377 


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 under other than honorable conditions discharge. 

2.  The applicant states:

   a.  Approximately one year after enlisting in the U.S. Army, he was granted          14 days emergency leave to care for his father who had been assaulted and was temporarily blind from his injuries.

   b.  He returned to his unit 14 days late from his scheduled return from emergency leave.  He subsequently received a court-martial for his actions and he was discharged from service with an under other than honorable conditions discharge.

   c.  In 1988, he was carjacked and shot in the lower back rendering him paralyzed from the waist.  His health problems have continued to debilitate him physically and mentally.  He currently receives treatment through the Department of Mental Health (Los Angeles County) and lives in a medical rehabilitation center.  He is in dire need of medical attention and requests an upgrade of his discharge so he may be able to receive healthcare at the Department of Veterans Affairs (VA) hospital. 

3.  The applicant provides:

* a self-authored statement
* a statement from his step-sister
* DD Form 214 (Report of Separation from Active Duty)
* various documents from his military records

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 24 February 1975.

3.  Evidence shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 10 October 1975, for being derelict in the performance of his duties and for unlawfully removing a public record
* 10 December 1975, for unlawfully carrying a concealed weapon

4.  His record contains Special Court-Martial Order Number 32, issued by Headquarters, 7th Transportation Group (Terminal), dated 1 September 1976, which shows he pled guilty and was found guilty of violating Articles 86 and 92 of the UCMJ for:

   a.  Absenting himself from his unit from 2 June to 2 July 1976. 

   b.  Being derelict in the performance of his duties in that he was found asleep while performing duty as vessel watch on 20 May 1976.

5.  On 29 July 1976, the following sentence was adjudged:  to be confined at hard labor for two months.

6.  His record contains Special Court-Martial Order Number 26, issued by U.S. Army Transportation Center and Fort Eustis, dated 15 October 1976, which shows he pled guilty and was found guilty of violating Articles 121 and 134 of the UCMJ for:

   a.  Stealing a citizen band radio, of a value of about $150.00, the property of another Soldier.

   b.  Wrongfully possessing .07 grams, more or less, of marijuana.

   c.  Wrongfully using marijuana.

7.  On 1 September 1976, the following sentence was adjudged:  to be confined at hard labor for three months, to forfeit $200.00 pay per month for three months, and to be discharged from the service with a bad conduct discharge (one previous conviction was considered).

8.  His record contains Special Court-Martial Order Number 75, issued by Headquarters, U.S. Disciplinary Barracks, dated 17 February 1977, that states in a special court-martial case of the applicant, the sentence to a bad conduct discharge, forfeiture of $200.00 pay per month for three months, and confinement at hard labor for 60 days, adjudged on 1 September 1976, as promulgated in Corrected Special Court-Martial Order Number 26, issued by Headquarters, U.S. Army Transportation Center and Fort Eustis, dated              15 October 1976, has been affirmed.  Article 71(c) having been complied with, the bad conduct discharge will be executed.

9.  His record contains a DD Form 214 that shows he was discharged on
11 March 1977 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, as a result of court-martial with a bad conduct discharge.  He completed 1 year, 8 months, and 17 days of creditable active service with 121 days of lost time.

10.  The applicant provides a statement from his step-sister who attests to the applicant returning home on leave to care for his father; however, she stated she did not know all of the details in the matter.

11.  There is no indication he petitioned the Army Discharge Review Board for a review of his case within that board's 15-year statute of limitations. 

12.  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.

13.  Army Regulation 635-200, 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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's trial by a special court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted. 

2.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

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.  Given the applicant's undistinguished record of service 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.  His contention that his misconduct was due, in part, to his father's assault and his subsequent need for care from the applicant is not supported by sufficient  evidence.  In any case, such a contention would have or should have been raised during the appellate review.  

5.  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.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

6.  Based on his record of misconduct which included more than one instance of NJP and special court-martial convictions, and after a careful review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, he is not entitled to an upgrade of his discharge.  

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)                                         AR20130020377





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ABCMR Record of Proceedings (cont)                                         AR20130020377



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