IN THE CASE OF:	  

		BOARD DATE:	  14 October 2014

		DOCKET NUMBER:  AR20140003101 


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 upgrade of his bad conduct discharge to a general discharge, under honorable conditions. 

2.  He states that after his court-martial in December 1987, the Judge Advocate General (JAG) officer advised him that his discharge would be under honorable conditions since he had waived his rights to the judicial court and would leave the U.S. Army as is.

3.  He adds that he has been out of the Army for 25 years and is moving forward with his life and he has been looking for a decent job to upgrade his career on the outside.  He stills works as a food service worker and is proud of his career.  He visited a Department of Veterans Affairs (VA) office at Tripler Army Medical Center and tried to sign in as a veteran to pick up some job information for work. He was sent to the main VA office to pick up an application to have his records corrected by this Board.  He needs the Board's support to adjudicate his case from the special court-martial he was given.

4.  The applicant did not provide any additional documentation. 

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 27 September 1979.  He served in military occupational specialty 94B (Food Service Specialist) and the highest rank/grade he attained while serving on active duty was sergeant/E-5.  His awards include the Army Achievement Medal (3rd Award) and the Army Good Conduct Medal.

3.  The facts and circumstances leading up to his special court-martial are not in the available record.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows he was confined by military authorities on 10 December 1986 and returned to duty on 30 January 1987.  He was placed on excess leave on 
28 February 1987.

4.  His record contains Headquarters, VII Corps, Special Court-Martial Order Number 39, dated 4 September 1987.  This order rescinded Special Court-Martial Order Number 13, which is not in the available record. 

5.  Headquarters, 7th Infantry Division (Light) and Fort Ord, Special Court-Martial Order Number 33, dated 14 April 1988, shows the applicant’s sentence to a bad conduct discharge, forfeiture of pay per month for 6 months, confinement for 2 months, and reduction to private/E-1, adjudged on 10 December 1986, as promulgated in Special Court-Martial Order Number 40, dated 4 September 1987, had finally been affirmed.  The bad conduct discharge was ordered executed and that part of the sentence extending to confinement had been served. 

6.  Special Court-Martial Order Number 40 is not in the available record. 

7.  On 24 June 1988, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of a court-martial with a bad conduct discharge.  He had completed 
8 years, 7 months, and 8 days of net active service.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated that a Soldier would 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.  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.

10.  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.  He contends that a JAG officer advised him that his discharge would be general, under honorable conditions since he had waived his rights to a judicial court.  All the facts and circumstances, including two special courts-martial orders, were not in the available record.  However, the available evidence does not show that he waived his rights to a judicial court and that he actually was court-martialed.

2.  There is a presumption of administrative regularity in the conduct of governmental affairs.  In this instance, the "presumption of regularity" is based on Army Regulation 15-185 which states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  He has not provided sufficient evidence or a convincing argument to show he was unjustly discharged.  His DD Form 214 shows he was discharged as a result of a court-martial and his character of service was listed as bad conduct. 

4.  Therefore, in the absence of evidence to the contrary, it reasonable to presume that the applicant was properly and equitably discharged in accordance with the laws and regulations in effect at that time, that all requirements of law and regulations were met, and his rights were fully protected throughout the separation process.

5.  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, it is presumed that the type of discharge directed and the reasons therefore were appropriate.

6.  The fact that it has been more than 25 years since his discharge and he has been seeking help through the VA to look for a decent job, is understandable; however, the ABCMR does not upgrade discharges solely based on the passage of time or to make one eligible for certain benefit.  In view of the foregoing, he is not entitled to 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)                                         AR20140003101





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ABCMR Record of Proceedings (cont)                                         AR20140003101



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