IN THE CASE OF:	  

		BOARD DATE:	   9 April 2015

		DOCKET NUMBER:  AR20140014673 


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 clemency and an upgrade of his bad conduct discharge (BCD) to honorable.  

2.  The applicant states, in effect, he is applying for a discharge upgrade so that he may be eligible for Department of Veterans Affairs (VA) health benefits and receive treatment at the local treatment centers.  He has some ongoing health issues that need treatment.  

3.  The applicant provides a general court-martial order and his 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 21 July 1993.  

3.  On 17 December 2002, he was convicted by a general court-martial of the following offenses:

* being absent without leave (AWOL) from 27 March to 29 May 2002
* larceny of government property of a value greater than $500 at or near Fort Bragg, NC between on or about 1 April 2001 and 1 October 2002
* wrongful use of marijuana at or near Fort Bragg, NC between on or about 18 May and 18 June 2002
* unlawfully grabbed and pulled on the body of a female with his hands on or about 16 July 2002

4.  He was sentenced to a forfeiture of all pay and allowances, reduction to private/E-1, confinement for 36 months, and to be discharged from the service with a BCD.  The sentence was approved and except for that part of the sentence extending to a BCD, was executed.  The applicant was credited with 151 days of confinement against the sentence to confinement.  

5.  The affirmation of the findings of guilty and the sentence is not available in his record.

6.  On 9 September 2004, the BCD was ordered to be executed.  He was discharged on 16 August 2006 under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 3, by reason of court-martial (other), with a BCD.  He completed 9 years, 10 months, and 25 days of creditable active service with over 1,000 days of lost time.

7.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-10 of this regulation states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

8.  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.  

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 contention that he is applying for an upgrade of his discharge for VA health benefits and treatment at local treatment centers for ongoing health issues is acknowledged.  The fact that the applicant is currently experiencing ongoing health issues is unfortunate.  

2.  There are no provisions in Army regulation that allow for the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.  

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

4.  Based on the seriousness of his offenses, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an honorable or a general discharge.

5.  The evidence of record does not indicate the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for clemency or for an upgrade of his BCD.  

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)                                         AR20140014673



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ABCMR Record of Proceedings (cont)                                         AR20140014673



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