IN THE CASE OF:	   

		BOARD DATE:	  3 September 2015

		DOCKET NUMBER:  AR20150001786


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 under other than honorable conditions (UOTHC) discharge.

2.  The applicant states that he served his time at the Disciplinary Barracks at Fort Leavenworth, Kansas and he needs his discharge upgraded in order to receive medical benefits.  He asserts his military record should reflect the agreement that his discharge would be upgraded upon completion of his time served for the punishment he received.  He is sorry for his actions.

3.  The applicant provides no additional documents.

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 (RA) from 27 August 1974 to 29 June 1976, at which time he was honorably discharged for the purpose of immediate reenlistment.  He held the grade of private first class/E-3 and had completed 1 year, 10 months, and 4 days of creditable active duty service for this service period.

3.  On 30 June 1979, the applicant reenlisted in the RA.  He served in military occupational specialty 11C (Indirect Fire Infantryman).  He attained the rank of specialist four/E-4.

4.  On 27 September 1978, a special court-martial (SPCM) at Fort Hood, Texas, convicted the applicant of theft of personal property valued at $490.00.  The sentence imposed by the military judge included confinement at hard labor for 6 months, forfeiture of $200.00 pay per month for 6 months, reduction to private, and a bad conduct discharge (BCD).

5.  On 20 October 1978, the convening authority approved the sentence.

6.  SPCM Order Number 53, dated 22 March 1979, issued by Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, Kansas, affirmed the sentence and ordered the BCD sentence duly executed.  On 22 June 1979 the applicant was discharged accordingly.

7.  The separation document (DD Form 214 (Report of Separation from Active Duty)) issued to the applicant on the date of his discharge confirms he completed a total of 4 years, 5 months, and 6 days of creditable active military service.  It also shows that he was separated under the provisions of paragraph 11-2, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of court-martial.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  In addition, there are no documents on file to show an agreement was made with the applicant to upgrade his discharge upon completion of his time served as a result of his SPCM conviction.  

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

	a.  It states  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.  It 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

	c.  Chapter 11 provided that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or SPCM after completion of the appellate review and after such affirmed sentence has been ordered duly executed.

10.  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 contends his punitive discharge should be upgraded because he served the time he received as a result of his SPCM conviction in exchange for an upgrade of his discharge.  However, he provided no evidence to support his contention that his court-martial conviction would be "automatically" upgraded there is insufficient evidence to support this claim.

2.  The evidence of record confirms a SPCM convicted the applicant of theft which resulted in his BCMD sentence among other punishments.  His trial by court-martial was warranted by the gravity of the offense for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  There is no regulatory provision that allows for an "automatic" upgrade nor does the ABCMR upgrade discharges to allow one Veteran’s benefits at the Federal or State. 

4.  By law, any redress by this Board 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 punishment imposed.  Given the applicant’s undistinguished record of service and absent any compelling mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency in the form of either a fully honorable or a general under honorable conditions discharge is not warranted in this case.

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)                                         AR20150001786



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ABCMR Record of Proceedings (cont)                                         AR20150001786



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