IN THE CASE OF:	   

		BOARD DATE:	  9 April 2015

		DOCKET NUMBER:  AR20140015559 


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 dishonorable discharge be upgraded to a general, under honorable conditions discharge, an under other than honorable conditions discharge, or a bad conduct discharge.

2.  The applicant states he believes his discharge is unjust because it is keeping him from using any of the military benefits available to him and from seeking treatment for issues that existed during his military service.  He is currently seeking help for mental issues that existed during and after his enlistment in the Army.  Over the years since his discharge, he has had several episodes that have been questionable.  He was turned down for the mental health treatment he was seeking because of his military record.

3.  The applicant provides no additional evidence.

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 7 June 1985 and he held military occupational specialty 45B (Small Arms Repairer).  On 8 November 1985, he was assigned to the 586th Maintenance Company, Germany.  

3.  On 14 September 1986, he was reported as absent without leave (AWOL) from his assigned unit.  On 10 October 1986, he returned to military control and to his assigned unit.

4.  On 13 December 1986, he was reported as AWOL from his assigned unit.  On 25 December 1986, he returned to military control and to his assigned unit.

5.  On 13 February 1987, he was convicted by a general court-martial of specification each of:

* willful disobedience of a noncommissioned officer (NCO) on 9 July 1986
* disrespect to a superior NCO on 9 July 1986
* disrespect to a superior NCO on 16 June 1986
* wrongful possession of marijuana or hashish on 14 June 1986
* wrongful use of marijuana between 15 April and 15 June 1986
* wrongful possession of marijuana or hashish on 29 May 1986
* assault with a means likely to produce grievous bodily harm on 17 July 1986
* assault and battery on 17 July 1986
* assault and battery on 29 May 1986
* wrongful use of marijuana between 19 June and 14 July 1986
* AWOL from 14 September to 10 October 1986
* AWOL from 13 to 25 December 1986
* wrongful communication of a threat on 12 December 1986

6.  He was sentenced to reduction to private/E-1, forfeiture of all pay and allowances, confinement for 18 months, and to a dishonorable discharge.

7.  He was incarcerated at Fort Leavenworth, KS.  On 27 April 1988, he was placed on excess leave while awaiting the appellate review.

8.  General Court-Martial Order Number 158, dated 30 May 1989, issued by the U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, shows the applicant's sentence had been affirmed and having been complied with, the convening authority ordered his dishonorable discharge executed.  On 23 June 1989, he was discharged accordingly.
9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 a dishonorable discharge.  He completed 2 years, 8 months, and 7 days of net active service of which 423 days (1 year, 1 month, and 28 days) was excess leave.  He had 524 days (1 year, 5 months, and 9 days) of lost time due to being AWOL and/or in confinement.

10.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel and prescribed the policies and procedures for separating members with a bad conduct discharge.  It stipulated that a Soldier would be given 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 was ordered duly executed.

11.  Army Regulation 635-200 states personnel administratively separated because of misconduct or unsatisfactory performance will normally be given an under other than honorable conditions discharge.

12.  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.

13.  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 discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  

2.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.
3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  After a review of his record of service, it is clear his service did not meet the criteria for general discharge or any other characterization of service then 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)                                         AR20140015559





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ABCMR Record of Proceedings (cont)                                         AR20140015559



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