RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 April 2007
	DOCKET NUMBER:  AR20060014009 


	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.  


x

	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 that his bad conduct discharge (BCD) be upgraded to a more favorable discharge.  

2.  The applicant states that he was only 17 years of age at the time of his discharge and that his discharge has followed him for 34 years and is something that occurred when he was a juvenile. 

3.  The applicant provides no additional documents with his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 7 March 1955 and enlisted with parental consent in Detroit, Michigan on 8 March 1972 for a period of 2 years.  He was transferred to Fort Knox, Kentucky to undergo his basic combat training and then to Fort Dix, New Jersey to undergo his advanced individual training (AIT).  

2.  On 15 August 1972, while still in AIT, he was convicted by a special        court-martial, pursuant to his pleas, of three specifications of attempting, by means of force and fear, to steal from three other Soldiers, against their will, currency in the amounts of $350.00, $100.00, and $250.00.  He was sentenced to confinement at hard labor for 4 months, a forfeiture of pay for 5 months, and a BCD.  However, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 2 months, a forfeiture of pay for 2 months, and a BCD.    

3.  The applicant was transferred to the Correctional Holding Detachment at Fort Dix to serve his sentence and on 11 October 1972, charges were preferred against the applicant for three specifications of disobeying a lawful order from corrections officials, for one specification of behaving with disrespect towards a superior commissioned officer, and one specification of striking a corrections official in the mouth with his fist.  For reasons that are not explained in the available records, the charges were not further pursued.  The applicant departed on excess leave on 27 October 1972 awaiting the results of his appellate review.  
4.  On 31 October 1972, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.  

5.  Accordingly, he was discharged pursuant to a duly reviewed and affirmed court-martial order and was issued a BCD Certificate.  He had served 6 months and 23 days of total active service and had 128 days of lost time due to confinement.  
6.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 

7.  Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.

8.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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.

9.  Paragraph 3-7b also 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.
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s trial by special court-martial was warranted by the gravity of the serious offenses with which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  

2.  The applicant's entire record of service was considered; however, the records show the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel and there is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.    

3.  The applicant’s contention that he was juvenile when he committed the offenses has been noted; however, there is no evidence to show that he was any less mature than the many other Soldiers who were serving or have served and did not commit such offenses. 

4.  After a thorough review of the available records, no cause for clemency was found and there was an insufficient basis upon which to base an upgrade of the applicant’s bad conduct discharge to an honorable or general discharge.  In view of the foregoing, there is no basis for granting the applicant's request.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, 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. 

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



INDEX

CASE ID
AR20060014009
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070426
TYPE OF DISCHARGE
(BCD)
DATE OF DISCHARGE
1973/02/06
DISCHARGE AUTHORITY
SPCM/BCD . . . . .  
DISCHARGE REASON
SPCM
BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.144.6800
675/A68.00
2.

3.

4.

5.

6.