IN THE CASE OF: BOARD DATE: 1 March 2016 DOCKET NUMBER: AR20150006203 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 bad conduct discharge. 2. The applicant states: * his discharge should have been honorable or under honorable conditions * the commanding general of the 1st Cavalry Division recommended suspension of the bad conduct discharge * he served his country for his entire 2-year enlistment * he needs Department of Veterans Affairs (VA) benefits just to survive and make ends meet * he paid his dues and one bad mistake shouldn't justify a bad conduct discharge * he served 2 months in the stockade and made restitution for his theft * he was punished enough with confinement 3. The applicant provides a copy of his DD Form 214 (Report of Separation 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. The applicant enlisted in the Regular Army on 27 June 1974 for a period of 2 years. 3. Between December 1974 and May 1976, nonjudicial punishment was imposed against him on four occasions for: * failing to go to his appointed place of duty * absenting himself from his appointed place of duty for 9 1/2 hours * failing to go to his appointed place of duty (two specifications) * failing to go to his appointed place of duty 4. On 22 July 1976, he was convicted by a special court-martial of larceny. He was sentenced to separation from the service with a bad conduct discharge, confinement at hard labor for 2 months, forfeiture of $240.00 pay for 2 months, and reduction to E-1. On 9 September 1976, the convening authority, the 1st Cavalry Division Acting Commanding General, approved the sentence. 5. The U.S. Army Court of Military Review and convening authority decisions are not available for review. 6. He was issued a bad conduct discharge on 20 September 1977 as a result of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11. He completed a total of 3 years, 1 month, and 4 days of creditable active service with 52 days of lost time. 7. In March 1980, the Army Discharge Review Board denied his request for a discharge upgrade. 8. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. a. 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. b. 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. c. Chapter 11, in effect at the time, stated a Soldier would 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. 9. 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 wants his bad conduct discharge upgraded so he can obtain VA benefits. However, a discharge is not changed simply for the purpose of qualifying an applicant for VA benefits. Each request is individually considered based on the evidence presented. 2. His trial by court-martial was warranted by the gravity of the offense charged. His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. 3. His record of service included four nonjudicial punishments, one special court-martial conviction, and 52 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. His service is insufficiently meritorious to warrant an honorable or a general discharge. 4. 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 applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate. As a result, clemency 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 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) AR20150006203 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006203 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1