RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060011250 


	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

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Edward E. Montgomery

Member

Ms. Rea N. Nuppenau

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 upgrade of his bad conduct discharge.

2.  The applicant did not make any statement on this application.

3.  The applicant did not provide any additional documentary evidence in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 24 February 1975, the date of his discharge.  The application submitted in this case is dated 24 July 2006.

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's record shows he enlisted in the Regular Army on 18 July 1972 and the highest rank he attained while serving on active duty was private first class/pay grade E-3.  

4.  The applicant's records do not show any significant acts of valor during his military service.

5.  On 10 October 1973, the applicant was convicted by a Special Court-Martial of on or about 25 August 1973, stealing an alternator.

6.  The applicant was sentenced to reduction to private/pay grade E-1, a forfeiture of $100.00 a month for three months, and confinement at hard labor for 3 months.  




7.  On 6 November 1973, the applicant submitted a request for discharge for the good of the service in lieu of trial by Court-Martial under the provisions of chapter 10 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  In his request for discharge, the applicant indicated that he had not been coerced into requesting discharge and had been advised of the implications that were attached to the request.

8.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  He further acknowledged that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  The applicant elected not to submit a statement on his own behalf.

9.  On 29 November 1973, the separation authority denied the applicant's request for discharge.

10.  On 22 January 1974, the applicant pled guilty at a General Court-Martial of on or about 6 October 1973, stealing one conga drum, one set of bongo drums, one King tenor saxophone, one Bruno flute, one Bundy alto saxophone, one Olds trombone, and one Voice of Music phonograph of a value totaling $1462.50.

11.  The applicant was sentenced to confinement at hard labor for 1 year, a forfeiture of all pay and allowances, and a bad conduct discharge.  

12.  On 7 February  1974, the Staff Judge Advocate reviewed the Record of Trial by General Court Martial of the applicant.  The Staff Judge Advocate determined that the sentence was legally correct and not in excess of that which could be adjudged.  He further recommended that the sentence as adjudged be approved. On the same day, the Convening Authority approved the findings and sentence.

13.  The applicant's records show that he expressed a desire to be restored to military duty.  The Director of Classification, Fort Leavenworth, Kansas determined that restoration was not recommended based on the fact that the applicant had two court martial convictions for larceny and did not represent a good candidate for further military service.

14.  On 28 May 1974, the Army Clemency and Parole Board remitted the applicant's sentence to confinement in excess of 10 months.

15.  On 18 October 1974, the United States Army Court of Military Review found the findings of guilt and sentence as approved by proper authority correct in law and fact and affirmed the findings and sentence.  The applicant was notified on 4 November 1974 of the Court's decision and his right to appeal to the United States Court of Military Appeals.  The record does not show the action taken, if any, by the US Court of Military Appeals.  However, the convening authority's promulgating order ordering the bad conduct discharge executed reflects that all required post-trial reviews were conducted.

16.  Department of the Army, Headquarters, US Disciplinary Barracks, Special Orders Number 35, dated 20 February 1975, discharged the applicant effective 24 February 1975.  These orders further show the discharge type was under other than honorable conditions. 

17.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he completed a total of 1 year, 7 months, and 26 days of creditable active military service and that he accrued 281 days of time lost due to confinement.  

18.  Army Regulation 635-200 provided for separation of enlisted personnel with a bad conduct discharge based on an approved sentence of a general court-martial or a special court-martial imposing a bad conduct discharge.  

19.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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.

20.  Army Regulation 635-200, paragraph 3-7, 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.

21.  Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  Evidence of record shows that the applicant was convicted by a Special Court Martial for larceny and by a General Court Martial for larceny. 

3.  Trial by court-martial was warranted by the gravity of the offense 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.  

4.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

5.  After review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis for a grant of clemency in the form of an honorable or a general discharge.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 24 February 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 23 February 1978.  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

__RNN ___  _EEM__  __WFC__  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.




__William F. Crain___
          CHAIRPERSON




INDEX

CASE ID
AR20060011250
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070308
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.