IN THE CASE OF:  	  

		BOARD DATE:  18 August 2015	  

		DOCKET NUMBER:  AR20150000472 


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 an upgrade of his discharge under other than honorable conditions (i.e., bad conduct discharge) to honorable. 

2.  The applicant states:

	a.  His discharge should be upgraded to honorable because he has changed.  He learned that his behavior was incorrect.  He was young and made mistakes.  He is a changed man and takes pride in his service to his country.  Having an honorable discharge will allow him to receive services from the Department of Veterans Affairs (VA) and live as a proud citizen.

	b.  His discharge is in error as he believes his conduct for the last 30 years is deserving of his request to upgrade his discharge.  He learned a valuable lesson and feels he has made, and continues to make, positive impacts in his community. 

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 28 March 1978 at 18 years, 11 months, and 16 days of age and he held military occupational specialty 12B (Combat Engineer).  On 26 August 1978, he was assigned to Company D, 317th Engineer Battalion, Germany.  On 28 November 1978, he was promoted to the rank/grade of private (PV2)/E-2.

3.  On 5 January 1979, he was convicted by a general court-martial of one specification each of wrongfully possessing heroin and of wrongfully transferring heroin.  He was sentenced to reduction to private (PV1)/E-1, forfeiture of all pay and allowances, confinement for 9 months, and a bad conduct discharge.

4.  On 11 January 1979, he was reported as absent without leave (AWOL) from his assigned unit.  On 27 January 1979, he returned to his assigned unit.

5.  On 2 March 1979, the convening authority approved the sentence except for the portion of the sentence in excess of forfeiture of pay of $250 per month for 9 months, and, except for the bad conduct discharge, ordered it executed.  The applicant was subsequently incarcerated at Fort Leavenworth, KS.

8.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, General Court-Martial Order Number 313, dated 2 July 1979, shows that his sentence had been affirmed.

9.  On 23 August 1979, he was discharged in the rank of PV1.  He completed 10 months and 2 days of net active service with 205 days (6 months and 25 days) of lost time due to being AWOL and/or in confinement.

10.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-2, with separation program designator (SPD) JJD (Court-Martial).  His service was characterized as under other than honorable conditions and he was issued a Bad Conduct Discharge Certificate.

11.  Army Regulation 635-200, paragraph 11-2, in effect at that time, provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special courtmartial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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

13.  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.

14.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States 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 and/or discharge 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 shows 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.  The applicant contends that his discharge should be upgraded because he was young and made mistakes at the time of his service.  Records show he was almost 20 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service.  In addition, the ABCMR does not grant requests for discharge upgrade 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.

3.  While his post-service conduct may be commendable, after a review of his record of service, it is clear that his service did not meet the criteria for an honorable or a general discharge or any characterization of service other than the one he received.  Therefore, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20150000472



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ABCMR Record of Proceedings (cont)                                         AR20150000472



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