BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140008928 


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 bad conduct discharge to a general, under honorable conditions discharge and a change to the narrative reason for separation shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he requests these actions so that he may receive benefits from the Department of Veterans Affairs (VA) and also enlist in the U.S. Army Reserve (USAR).

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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's complete military record is not available to the Board for review.  However, the available record contains sufficient documents for the Board to conduct a fair and impartial review of this case.

3.  The applicant enlisted in the Regular Army on 18 June 1990 for a period of 
4 years.  He was awarded military occupational specialty 12F (Engineer Tracked Vehicle Crewman) and promoted to specialist/pay grade E-4.

4.  The available record shows he was –

* reported absent without leave (AWOL) effective 20 July 1992
* dropped from the rolls of his unit on 19 August 1992
* returned to military control on 8 September 1992

5.  Headquarters, 1st Infantry Division (Mechanized), Fort Riley, KS, General Court-Martial Order Number 2, dated 14 January 1993, promulgated the applicant's sentence to a bad conduct discharge, confinement for one year and one day, forfeiture of all pay and allowances, and reduction to the grade of private (E-1) that was adjudged by the general court-martial on 19 November 1992.

6.  The U.S. Army Court of Military Review reviewed the applicant's case.  A Notice of Court-Martial Order Correction, dated 12 February 1993, shows that Headquarters, 1st Infantry Division (Mechanized), Fort Riley, KS, General Court-Martial Order Number 2, dated 14 January 1993, was corrected to reflect in –

* Specification 1 of Charge II, "a total of 26 checks in the amount of $1,407.39"
* Specification 2 of Charge III, "a dollar amount of $1,407.39"

7.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 190, dated 6 December 1993, confirmed that the applicant's court-martial sentence (as corrected by the U.S. Army Court of Military Review Notice of Court-Martial Order Correction) was affirmed.  The provisions of Article 71(c) having been complied with, the sentence was ordered duly executed.

8.  The applicant's DD Form 214 shows he was separated on 17 February 1994 with a bad conduct discharge.  He was credited with 2 years, 10 months, and 
1 day of net active service this period.  He had time lost due to AWOL and confinement from 20 July 1992 to 18 May 1993.  It also shows in –

* item 25 (Separation Authority):  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, Section IV
* item 26 (Separation Code):  "JJD" (As a Result of Court Marital, Other)
* item 28 (Narrative Reason for Separation):  "Court Martial, Other"

9.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 3 provides that a member will be given a dishonorable or 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 executed.

	b.  Chapter 3, 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.

10.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.  

   a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the Official Military Personnel File.

   b.  Section II (Instructions for Preparing DD Form 214) contains item-by-item instructions for completing the DD Form 214.  It shows for –

* item 25, enter the regulatory or other authority cited in directives authorizing separation
* item 26, enter the proper Separation Program Designator (SPD) representing the specific authority for separation (see Army Regulation 635-5-1 (SPD Codes))
* item 28, enter the narrative reason for separation as shown in Army Regulation 635-5-1 based on the regulatory or other authority

11.  Army Regulation 635-5-1 provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JJD" as the appropriate code to assign enlisted Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, Chapter 3, Section IV, as a result of court-martial, other.  

12.  Army Regulation 15-185 (ABCMR) 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.

13.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 contends that his bad conduct discharge should be upgraded because he would like to receive veterans' benefits and also enlist in the USAR.

2.  The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, in the absence of evidence to the contrary, the type and character of discharge directed is presumed to have been, and still is, appropriate.  Moreover, the evidence of record shows the separation authority, separation code, and narrative reason for separation shown on the applicant's DD Form 214 are proper and correct.

3.  The evidence of record shows the applicant committed offenses for which he was convicted by a general court-martial.  Thus, his record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to a general, under honorable conditions discharge.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' 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 veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the VA or appropriate government agency.
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)                                         AR20140008928



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ABCMR Record of Proceedings (cont)                                         AR20140008928



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