IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140012401 


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 his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states:

	a.  His court-martial conviction was unjust.  Soldiers in the same unit during the same time frame received lesser punishments.  The charges against him were dismissed and he had permission to clear for a permanent change of station (PCS).  On the last day he was clearing, he was told he would be facing a court-martial.  All his bags and evidence for the court-martial had already been sent to his next duty station and he was held for 6 months with no bags.

	b.  He had eight operations while in the service, to include other illnesses and impairments, and the Department of Veterans Affairs (VA) denied him medical care due to his character of service.  He hasn't worked in 4 years as employers overlook him due to his limitations and character of service; he can only work at a desk.  He applied to volunteer at his son's school and was denied due to his court-martial conviction.  He finds himself explaining what happened on a job interview but no matter what he says the fact that he was convicted hurts him in so many ways.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and reassignment orders, dated 6 September 2005.


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 July 1997.  He was assigned to the 1st Battalion, 72nd Armor Regiment, Korea, and he held the rank/grade of specialist/E-4.

3.  On 24 October 2002, he was convicted by a general court-martial of one specification each of:

* conspiring with a noncommissioned officer by altering a public record by changing his (the applicant's) GT score on an Enlisted Record Brief (ERB) and giving him $60 to do so
* making a false official statement with the intent to deceive to a commissioned officer that he had not paid money to change his GT score
* willfully and unlawfully altering a public record, an ERB, by changing the GT score
* attempted bribery of a private first class in the enlisted records section
* signing an official record, with the intent to deceive, a DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters) stating his wife was living in San Francisco, CA, which he knew to be totally false
* stealing U.S. currency of a value of about $14,514.57, the property of the U.S. Government, by wrongfully receiving basic allowance for housing (BAH) which he was not entitled to

4.  He was sentenced to reduction to private (PVT)/E-1, confinement for 2 years, and a bad conduct discharge.  He was subsequently confined at the Personnel Control Facility, Fort Sill, OK.

5.  On 7 August 2003, the Army Clemency and Parole Board granted him clemency and upgraded his discharge from a bad conduct discharge to an under other than honorable conditions discharge.  He was placed on excess leave on 24 October 2004 pending appellate review.

6.  On 14 September 2005, he was discharged.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation
635-200 (Personnel Separations – Enlisted Separations), chapter 3, by reason of court-martial, with an under other than honorable conditions characterization of service.  He completed 6 years, 1 month, and 10 days of net active service, of which 326 days was excess leave, and he had 2 years of lost time due to being in confinement.

7.  His medical records are not available for review with this case.

8.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.

	a.  Chapter 3 states characterization at separation will be based upon the quality of the Soldier's service and the reason for separation.  It prescribes the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates that a Soldier would be given a dishonorable 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 3-7c provides that an under other than honorable conditions discharge is an administrative separation under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial.

9.  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.

10.  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.

11.  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 evidence of record confirms the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and sentence were effected in accordance with applicable laws and regulations.

2.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  In 2003, he was granted clemency by the Army Clemency and Parole Board and his discharge was upgraded from a bad conduct discharge to an under other than honorable conditions discharge.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  After a review of his record of service, it is clear his service did not meet the criteria for any other type of discharge than the one he received.  Therefore, 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)                                         AR20140012401





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ABCMR Record of Proceedings (cont)                                         AR20140012401



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