RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 November 2005
	DOCKET NUMBER:  AR20050001897 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Carl W. S. Chun

Director

Ms. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Mr. John E. Denning

Member

Ms. Jeanette R. McCants

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his bad conduct discharge (BCD) be upgraded to a general discharge.

2.  The applicant states that under today's standards, his punishment was too severe.  He states that when he returned from overseas, he was unable to adjust to stateside duty.

3.  The applicant provides no additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice, which occurred on 3 February 1972.  The application submitted in this case is dated 1 February 2005.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was inducted into the Army in Dallas, Texas, on 26 January 1968 and he successfully completed his training as a wireman.  

4.  He was advanced to the pay grade of E-2 on 26 May 1968 and he was transferred to Vietnam on 7 June 1968.  He was advanced to the pay grade of 
E-3 on 14 July 1968 and temporarily to the pay grade of E-4 on 23 October 1968. The applicant was returned to his permanent pay grade of E-3 on 12 February 1969 and he returned to the Continental United States on or about 4 July 1969.

5.  Nonjudicial punishment (NJP) was imposed against the applicant on 11 September 1969, for being absent without leave (AWOL) from 2 September until 5 September 1969.  His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay in the amount of $20.00, 14 days of restriction and 14 days of extra duty.

6.  On 4 November 1969, NJP was imposed against the applicant for being AWOL from 6 October until 27 October 1969.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay in the amount of $43.00, 25 days of restriction and 25 days of extra duty.  

7.  The applicant was convicted by a special court-martial on 27 January 1970, of being AWOL from 12 November until 14 December 1969.  He was sentenced to a reduction to the pay grade of E-1, 45 days of hard labor without confinement and 45 days of restriction.  

8.  On 30 September 1971, the applicant was convicted, pursuant to his pleas, by a general court-martial of committing assault on another individual by pointing a pistol at his head and of being AWOL from 10 March 1970 until 19 August 1971.  He was sentenced to a BCD, confinement at hard labor for 8 months, a reduction to the pay grade of E-1 and a forfeiture of all pay and allowances.

9.  The convening authority approved only so much of the sentence on 20 October 1971, as provided for a BCD, confinement at hard labor for 7 months, a reduction to the pay grade of E-1 and a forfeiture of all pay and allowances.

10.  On 10 January 1972, the United States Army Court of Military Review determined that a record of NJP was erroneously admitted into evidence and reassessed the sentence based on the error and the entire record.  The United States Army Court of Military Review affirmed only so much of the sentence as provided for a BCD, confinement at hard labor for 5 months and a reduction to the pay grade of E-1.

11.  Accordingly, on 3 February 1972, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 11-1b, as a result of a duly reviewed and affirmed general court-martial conviction.  He had completed 1 year, 11 months and 16 days of total active service and he had over 770 days of lost time due to AWOL and confinement.  He was furnished a BCD.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation states, in pertinent part, that a member will be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.



13.  Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.  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 discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses and his overall undistinguished record of service.  He had NJP imposed against him on two separate occasions; he was convicted by a special court-martial as a result of a lengthy AWOL and he was subsequently convicted by a general court-martial for AWOL and assault.  Considering his numerous acts of misconduct, the BCD that he was furnished appropriately reflects the character of his service.

4.  Additionally, the applicant's contention that the punishment that he received was too severe compared to today's standards is incorrect.  According to the maximum table of punishment contained in the 2005 Edition of the Manual for Courts-Martial, the maximum punishment he could have received for the assault with a loaded weapon and AWOL is a dishonorable discharge, confinement at hard labor for 8 years and a total forfeiture of pay. 

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.



7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 February 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 February 1975.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___le___  __jed___  __jrm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.



							Lester Echols
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20050001897
SUFFIX

RECON

DATE BOARDED
20051117
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19720203
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
CH 11/AS A RESULT OF A GCM
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  675
144.6800/BCD
2.  678
144.6803/SERIOUS OFFENSE
3.  780
144.7100/AWOL
4.  716
144.7300/ASSAULT
5.

6.