IN THE CASE OF:	  

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140008188 


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, in effect, an upgrade of his bad conduct discharge (BCD) to an honorable discharge (HD) or a general discharge (GD).

2.  The applicant states:

* His charges were mainly for insubordination and for not following orders for various reasons
* He had the flu and he was sick
* He was a young alcoholic and he also experienced child abuse
* He started drinking while he was in the military and he had a substance abuse issue that carried on in his private life
* He was 19 years old when he enlisted in the Army and he is now 56 years old
* He is a homeless veteran with medical issues that stem from his active duty service
* He suffers from alcoholism, post-traumatic stress disorder, anxiety, and diabetes
* He is asking for an upgrade of  his discharge for access to Department of Veterans Affairs (VA) benefits

3.  The applicant provides an undated, self-authored statement.


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 Army on 13 June 1977 at age 19.  He completed training as a radio teletype operator.

3.  The applicant accepted nonjudicial punishment (NJP) on 20 November 1978 and 23 May 1979 for the following: 

* Disobeying a lawful order from his superior commissioned officer (two specifications)
* Behaving with disrespect towards his superior commissioned officer
* Disobeying a lawful order from his superior noncommissioned officer (two specifications)
* Failure to go to his appointed place of duty

4.  On 29 August 1979, he was convicted by a special court-martial of:

* Failure to go to his appointed place of duty
* Disobeying a lawful order given by his superior commissioned officers (four specifications)
* Disobeying a lawful order given by his superior noncommissioned officers (three specifications)
* Behaving with disrespect towards his superior commissioned officer

5.  He was sentenced to:

* a BCD 
* Confinement at hard labor for 4 months
* Forfeiture of $279.00 pay per month for 6 months
* Reduction to pay grade E-1

6.  On 24 October 1979, the convening authority disapproved the finding of guilty of one specification of disobeying a lawful order given by his superior commissioned officer.  The convening authority approved only so much of the sentence as provided for a BCD, confinement at hard labor for 3 ½ months, and forfeiture of $279.00 pay per month for 4 months.  The convening authority ordered him to be confined in the United States Disciplinary Barracks, Fort Leavenworth, KS, or elsewhere as competent authority may direct.  

7.  General Court-Martial Order Number 222, issued by Headquarters, United States Disciplinary Barracks, Fort Leavenworth, KS, dated 14 December 1979, noting that the portion of the sentence pertaining to confinement at hard labor had been served, restored the applicant to duty pending completion of appellate review.

8.  On 17 April 1980, the Commander, XVIII Airborne Corps and Fort Bragg, Staff Judge Advocate was notified that the U.S. Court of Military Appeals granted the applicant's petition for a grant of review.

9.  Headquarters, XVIII Airborne Corps and Fort Bragg Special Court-Martial Order Number 100 dated 28 October 1980 noted that sentence as approved by the convening authority had been affirmed.  It shows that the provisions of Article 71(c) having been complied with, the sentence was ordered to be executed.

10.  On 14 November 1980, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of a special court-martial conviction.  He completed 3 year, 2 months, and 3 days of net active service this period and he received a BCD.

11.  The available records do not show that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

12.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that 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 modify the severity of the punishment imposed.

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

   a.  Chapter 11 of the regulation in effect at the time states that a member will be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

   b.  Paragraph 3-7a states 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.
   
   c.  Paragraph 3-7b states 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 applicant's contentions have been noted.

2.  None of his contentions are sufficiently mitigating to warrant an upgrade of his discharge.  His records show he was discharged with a BCD as a result of a special court-martial conviction and he has provided no evidence to show the type of discharge he received was erroneous or unjust.

3.  Based on his overall record of service he did not serve honorably or under honorable conditions.  The BCD he received appropriately characterizes his service and it is not severe considering the nature of his offenses.

4.  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.

5.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the VA.

6.  In view of the foregoing, there is an insufficient basis for granting the applicant an honorable or a general 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)                                         AR20140008188



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ABCMR Record of Proceedings (cont)                                         AR20140008188



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