IN THE CASE OF:	  

		BOARD DATE:	  9 September 2014

		DOCKET NUMBER:  AR20140002492 


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 that his bad conduct discharge be upgraded to general, under honorable conditions.

2.  The applicant states he was told his discharge would be upgraded after serving confinement.  He needs the upgrade in order to receive Department of Veterans Affairs (VA) medical benefits and pension.

3.  The applicant provides a 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 19 July 1995.

3.  On 20 June 2001, he was found guilty, in accordance with his pleas, by a general court-martial of:

* violating a lawful general regulation by wrongfully carrying and transporting a loaded firearm
* three specifications of wrongful possession of marijuana
* assault towards another Soldier by raising a loaded firearm out of his pocket and stating, “ I have a gun, where is my money”
* two specifications of wrongful use of marijuana
* two specifications of wrongful use of cocaine
* two specifications of disrespectful behavior towards commissioned officers 

4.  The sentence consisted of reduction to the rank/grade of private/E-1, forfeiture of $800 per month for 24 months, confinement for 8 months, and to receive a bad conduct discharge.

5.  On 21 July 2003, the U.S. Army Court of Military Review affirmed the findings and the sentence.

6.  On 21 November 2003, the sentence having been affirmed and the provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

7.  Accordingly, he was discharged on 16 April 2004 as a result of a court-martial with a bad conduct discharge.

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

	a.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

	b.  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.

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.  The applicant's request for an upgrade of his bad conduct discharge in order to receive VA medical services and pension was carefully considered.  However, the ABCMR does not upgrade discharges for the sole purpose of enabling an individual to obtain benefits and services provided by the VA.

2.  He contends that he was told his discharge would be upgraded after serving confinement.  However, 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 requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

3.  The evidence shows that the trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the final discharge appropriately characterized the misconduct for which he was convicted.

4.  Based on the seriousness of his misconduct, which includes wrongfully transporting a loaded firearm, wrongful possession and use of marijuana and cocaine, assault, and disrespect towards commissioned officers, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

5.  There is no evidence of error or injustice in the applicant's separation processing.  Therefore, there is no basis to grant the requested relief.

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)                                         AR20140002492



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ABCMR Record of Proceedings (cont)                                         AR20140002492



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