IN THE CASE OF: BOARD DATE: 19 May 2011 DOCKET NUMBER: AR20100028201 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 to honorable. 2. The applicant states the upgrade is required due to his medical conditions at the time. He had surgery on his leg which caused his inability to serve his full term. 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and the front page of his induction physical and back page of his separation physical. 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's records show he underwent an induction physical and he was inducted into the Army of the United States on 9 April 1969. He was subsequently reassigned to Fort Benning, GA, for completion of basic combat training. 3. On 24 May 1969, he departed his training unit in an absent without leave (AWOL) status, but he returned on 28 May 1969. 4. On 12 July 1969, he again departed his unit in an AWOL status and he was dropped from the Army rolls as a deserter on 10 August 1969. He returned to military control on 28 August 1969 and was placed in pretrial confinement. 5. On 8 September 1969, he was convicted by a special court-martial of one specification of AWOL from 12 July to 28 August 1969. The court sentenced him to confinement at hard labor for 3 months and a forfeiture of $25.00 pay per month for 3 months. On 18 September 1969, the convening authority approved the sentence, but he suspended the confinement for a period of 3 months with a provision for automatic remission. 6. On 9 September 1969, he again departed his unit in an AWOL status and he returned to military control on 18 September 1969. He was again placed in pretrial confinement. 7. On 26 September 1969, he was convicted by a special court-martial of one specification of AWOL from 9 to 18 September 1969. The court sentenced him to confinement at hard labor for 45 days and a forfeiture of $10.00 pay per month for 2 months. On 10 October 1969, the convening authority approved the sentence. 8. On 15 October 1969, he again departed his unit in an AWOL status and he was dropped from the Army rolls as a deserter on 19 November 1969. He returned to military control on 25 March 1970. 9. On 28 April 1970, he was convicted by a general court-martial of one specification of AWOL from 15 October 1969 to 24 March 1970. The court sentenced him to confinement at hard labor for 1 year and 1 month and a bad conduct discharge. 10. On 19 June 1970, the convening authority approved the sentence and, except for the bad conduct discharge, he ordered it executed. The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review. 11. On 10 November 1970, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 12. On 4 December 1970, he underwent a separation physical at the U.S. Disciplinary Barracks, Fort Leavenworth, KS. The attending physician did not note any abnormalities. 13. He was discharged from the Army on 9 December 1970. His DD Form 214 shows he was discharged under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial with an under conditions other than honorable character of service. It further shows he completed 3 months and 5 days of creditable active service and he had 513 days of lost time. 14. Army Regulation 635-200 sets forth the basic authority for the 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 15. 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 bad conduct discharge should be upgraded to honorable. 2. The evidence of record shows his trial by a general court-martial was warranted by the gravity of the offense charged. The conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterized the misconduct for which he was convicted. 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. 3. There is no evidence in his records and he did not provide substantiating evidence that shows his extensive history of AWOL was a result of a medical condition. Furthermore, the evidence of record shows that at the time of his discharge he underwent a separation physical and no abnormalities were noted. There is no evidence that shows he had a medical condition requiring a medical separation. 4. After a careful review of the applicant's entire record of service, it is clear his service did not meet the criteria for an honorable or a general discharge. As a result, he is not entitled to an upgrade of his discharge. 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) AR20100028201 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100028201 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1