IN THE CASE OF:	   

		BOARD DATE:	  14 April 2015

		DOCKET NUMBER:  AR20140014948 


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, that his bad conduct discharge (BCD) be upgraded to general, under honorable conditions.

2.  The applicant states he was not properly counseled at the time of the incident and his chain of command failed to provide him with the necessary rehabilitation to assist him with maintaining and sustaining his military career.  He also argues that the location where the incident took place did not have the proper facilities to provide him information and proper therapy, counseling, and rehabilitation.  He does not believe his discharge was consistent with the policies and traditions of military service.  The strict and harsh discharge he received was in error.   Because of these reasons, he now wants his characterization of service and his separation code upgraded to a general discharge.  He does not have any supporting statements because most of the people who served with him are either deceased or now live elsewhere and he is not familiar with how to contact them.

3.  The applicant provides copies of:

* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) dated 30 August 2010
* VA letter informing the applicant of his ineligibility for VA benefits, dated 15 September 2011



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.  On 2 October 1989, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 75H (Personnel Service Specialist).

3.  The applicant's military record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) and Special Court-Martial (SCM) Order Number 13, dated 20 February 1998 showing:

	a.  the applicant was found guilty on 19 July 1996, and sentenced to discharge with a BCD, confinement for 6 months, a forfeiture of $582.00 pay per month for 6 months, and reduction to private, pay grade E-1;

	b.  the sentence was approved; and

	c.  on 20 February 1998, the sentence having been affirmed and Article 71 having been complied with, the sentence was ordered to be executed.

4.  The applicant's DD Form 214 shows he was discharged on 8 May 1998.  He received a bad conduct characterization of service based on a court-martial.

5.  On 5 October 2011, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his characterization of service.  The ADRB found no cause for clemency.

6.  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.

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

	a.  Paragraph 3-7a provides 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.

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his BCD should be upgraded to general, under honorable conditions because he was not afforded proper counseling and necessary rehabilitation to assist him with maintaining and sustaining his military career.

2.  In the absence of evidence to the contrary, it is presumed that the court-martial proceedings were conducted in accordance with law and regulations applicable at the time.  There is no available evidence suggesting that the character of his discharge is not commensurate with his overall record.

3.  The applicant has not provided any documentary evidence or convincing argument showing he did not commit crime(s) for which he was convicted.  His contentions relate to matters which should have been raised and conclusively adjudicated in the judicial and appellate processes.

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.  In the absence of evidence showing otherwise, it must be presumed that the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.
5.  In view of the above, the applicant’s request should be denied.

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)                                         AR20140014948





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ABCMR Record of Proceedings (cont)                                         AR20140014948



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