IN THE CASE OF: BOARD DATE: 18 January 2012 DOCKET NUMBER: AR20110011213 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 upgrade of his bad conduct discharge to a general discharge. 2. The applicant states he was erroneously blamed for assaulting a military officer. He is in need of medical treatment and must have an upgrade of his discharge to receive Department of Veterans Affairs (VA) medical benefits. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 16 July 1981, the applicant enlisted in the Regular Army. He completed his initial training and he was awarded military occupational specialty 11B (Infantryman). 3. The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows in Item 18 (Appointments and Reductions) the following entries: GRADE DATE OF RANK PV1 (private/E-1) 810716 PV2 (private/E-2) 820116 PFC (private first class/E-3) 820716 SP4 (specialist four/E-4) 830401 PFC 830803 PV1 840329 4. On 3 August 1983, the applicant accepted nonjudicial punishment for the wrongful use of marijuana. His punishment included a reduction to PFC. 5. Special Court-Martial Order Number 99, issued by Headquarters, 2nd Infantry Division, dated 21 December 1983 shows: a. The applicant was convicted of four specifications of violating Article 90 under the Uniform Code of Military Justice (UCMJ) by: * striking a commissioned officer by pushing him against a wall * disobeying three lawful commands from a commissioned officer b. The applicant was also convicted of one specification of violating Article 134 under the UCMJ by wrongfully possessing approximately .28 grams of marijuana. c. The sentence, adjudged on 15 November 1983, was: * confinement at hard labor for 5 months * forfeiture of $382.00 pay per month for 5 months * reduction to the grade of E-1 * bad conduct discharge d. The convening authority approved the sentence. The forfeitures were to be applied to pay coming due on and after the date of approval. The record of trial was to be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. Pending completion of appellate review, the applicant was to be confined at the U.S. Army Correctional Activity, Fort Riley, KS, or elsewhere as competent authority may direct. 6. The applicant was in military confinement from 15 November 1983 through 28 March 1984 for a period of 135 days. 7. The applicant's DA Form 2-2 (Record of Court-Martial Conviction) indicates that Special Court-Martial Order Number 433, issued by the U. S. Army Correctional Activity, Fort Riley, dated 23 October 1984, stated that the sentence was affirmed. Article 71(c) having been complied with, the sentence was to be duly executed. 8. The applicant was subsequently discharged from the Regular Army on 6 November 1984 under the provisions of Army Regulation 635-200, chapter 3, section IV, as a result of court-martial. Item 24 (Character of Service) of his DD Form 214 shows the entry "bad conduct." 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It states: a. Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. b. in paragraph 3-7b, 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. 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 that his bad conduct discharge should be upgraded to a general discharge because the incident for which he was convicted did not happen. Furthermore, he states he is in need of medical treatment and must have an upgrade of his discharge to receive VA medical benefits. 2. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the final discharge appropriately characterizes the misconduct for which the applicant was convicted. 3. The applicant has not provided any documentary evidence to support his contention that he did not commit the acts for which he was convicted. His contention relates to matters which should have been raised and have been finally and conclusively adjusted in the court-martial appellate process. 4. The applicant's desire to obtain veterans medical benefits is not justification for an upgrade of an individual's discharge. 5. In view of the foregoing, there is no basis for granting the applicant’s request. 6. Additionally, 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. Given the seriousness of his criminal offenses and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate. 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) AR20110011213 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110011213 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1