BOARD DATE:	  21 July 2015

		DOCKET NUMBER:  AR20140020431 


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, clemency in the form of an upgrade of his bad conduct discharge (BCD).

2.  The applicant states:

	a.  He was relieved of his military duties with a BCD after he returned from Operations Desert Storm/Desert Shield.

	b.  Twenty years later, he has now had a chance to see another Iraq War start and come to a close.  He has not been a part of the veteran community because of his discharge.

	c.  He has felt jilted by that decision for a long time, but he has come to realize that the Army's decision was just and fair due to his actions.

	d.  Through self-examination, he has further found many flaws and errors in his life.  He has confronted these issues head on and become a better person.

	e.  He has come to live by the Army's motto "Be All You Can Be."  He's asking that the Board re-examine his records.  He believes that his records will speak for themselves and reflect his character.  

	f.  He has several awards and citations for his service, except for this one incident that led to his discharge.  He made a horrible mistake and he's working hard to make amends.  He asks that his efforts be recognized and that he be granted an upgrade of his BCD so that he may be afforded the benefits of a veteran with access to the Department of Veterans Affairs (VA) and anything he may be able to obtain from the veterans community.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Permanent Orders 51-52 and 51-58, dated 21 March 1991, awarding him the Combat Infantryman Badge
* Permanent Orders 06-033, dated 10 July 1991, awarding him the Army Commendation Medal
* two Fort Hood (FH) Forms 2836 (Positive Counseling)
* Special Court-Martial Order Number 1, dated 26 February 1992

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 October 1989 for a period of 3 years.  After completion of required training, he was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).  He served in Southwest Asia from 11 October 1990 to 7 April 1991.

3.  On 3 December 1991, he was convicted by a special court-martial of misbehavior as a sentinel (leaving post) on 14 September 1991 and an additional charge of violating a lawful general regulation on 14 September 1991 (use of alcohol on duty).

4.  He was sentenced to a BCD, confinement for 2 months, a forfeiture of $500 pay for 6 months, and reduction to private, E-1.  

5.  On 26 February 1992, the sentence was approved and, except for that portion extending to a BCD, was executed.
6.  On 3 June 1992, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  Upon completion of his confinement, he was placed in an excess leave status, effective 6 March 1993.  

7.  On 6 March 1995, the BCD was ordered executed.  

8.  He was discharged on 12 January 1998 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, by reason of court-martial – other, with the issuance of a BCD.  He completed 8 years and 28 days of creditable active service with lost time from 3 December 1991 to 22 January 1992 (50 days) due to confinement.

9.  His DD Form 214 shows he was awarded or authorized the National Defense Service Medal, Southwest Asia Service Medal with two bronze service stars, Army Service Ribbon, Kuwait Liberation Medal (Saudi Arabia), Kuwait Liberation Medal (Kuwait), Dragon Gunner Expert Marksmanship Qualification Badge, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar.

10.  He provided the following documents:

	a.  Permanent Orders 51-52 and Permanent Orders 51-58, issued by Headquarters, U.S. Army Forces Central Command on 21 March 1991, which show he was awarded the Combat Infantryman Badge for service during the period 24 to 27 February 1991.  This badge is not listed on his DD Form 214.

	b.  Permanent Orders 06-033, dated 10 Jul 1991, which show he was awarded the Army Commendation Medal for meritorious service from 17 January through 1 March 1991.  This medal is not listed on his DD Form 214.

	c.  Two FH Forms 2836, dated 1 October and 1 November 1991, which show he received positive counseling regarding his duty performance.  His counselor stated the applicant was currently attending a drug and alcohol program and acknowledges he can do a lot better.  

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

   a.  Paragraph 3-11 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.
   
   b.  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.

	c.  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.

12.  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 statement that he was relieved of his military duties with a BCD after he returned from Operations Desert Storm/Desert Shield is acknowledged.  

2.  The evidence of record shows the applicant served in Southwest Asia from 11 October 1990 to 7 April 1991.  On 3 December 1991, he was convicted by a special court-martial for misbehavior as a sentinel (leaving post) and violating a lawful general regulation (use of alcohol on duty).  As a result, he was sentenced to a BCD, confinement for 2 months, a forfeiture of $500 pay for 6 months, and a reduction to private/E-1.

3.  The applicant states he has learned from his mistakes and is now a better person as a result of his self-examination.  The evidence of record supports the applicant's contention that he has multiple awards and citations for his service.  Although he admits that he made a horrible mistake, his awards and his post-service efforts toward self-improvement are insufficient as a basis to grant him clemency or an upgrade of his discharge.

4.  The applicant's contention that he is applying for an upgrade of his discharge so that he may be afforded VA benefits is acknowledged.  However, there are no provisions in Army regulations 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.  

5.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged and his conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

6.  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.

7.  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 in the form of 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)                                         AR20140020431





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ABCMR Record of Proceedings (cont)                                         AR20140020431



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