RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060015919 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. William Crain

Chairperson

Mr. Donald Lewy

Member

Mr. Roland Venable

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 clemency be granted in the form of an honorable discharge.

2.  The applicant does not provide an explanation or justification supporting his request for an upgrade. 

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge); a Bad Conduct Discharge Certificate; and discharge orders, dated 
15 August 1968.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 16 August 1968.  The application submitted in this case is dated 30 August 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 was inducted on 18 August 1965.  While in basic combat training, on 14 September 1965, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 12 September 1965 to 14 September 1965.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.   

4.  On 29 December 1965, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 18 September 1965 to 
6 December 1965.  He was sentenced to forfeit $58 pay per month for 6 months and to be confined at hard labor for 6 months.  On 14 January 1966, the convening authority approved the sentence.  On 8 April 1966, the unexecuted portion of the sentence to confinement at hard labor for 6 months was suspended until 29 July 1966.   

5.  On 16 March 1967, in accordance with his plea, the applicant was convicted by a general court-martial of being AWOL from 18 April 1966 to 21 December 1966.  He was sentenced to forfeit all pay and allowances, to be confined for 
8 months, and to be discharged from the service with a bad conduct discharge.  On 2 June 1967, the convening authority approved the sentence.

6.  Records show the applicant went AWOL on 20 October 1967 and returned to military control on 18 December 1967.  He was placed in confinement from 
19 December 1967 to 28 December 1967.  He went AWOL again on 
29 December 1967 and returned to military control on 16 August 1968. 

7.  On 29 May 1968, the United States Army Board of Review, Office of The Judge Advocate General, reassessed the sentence and approved only so much as provided for a bad conduct discharge, confinement at hard labor for 6 months, and forfeiture of $50 pay per month for 6 months.  The findings of guilty and the modified sentence were affirmed.  

8.  On 22 July 1968, the convening authority ordered the applicant’s discharge executed. 

9.  Accordingly, the applicant was discharged with a bad conduct discharge on 
16 August 1968 under the provisions of Army Regulation 635-204 for conviction by a general court-martial.  He had served 2 months of total active service with 684 days of lost time due to AWOL and confinement.  He was discharged while in an AWOL status.

10.  Army Regulation 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges.  Paragraph 1b of this regulation states that an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.  

11.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's brief record of service included one nonjudicial punishment, one special court-martial conviction, one general court-martial conviction, and 684 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.  Therefore, the applicant's record of service is insufficiently meritorious to warrant clemency in the form of a general discharge or an honorable discharge.

2.  Records show the applicant should have discovered the alleged injustice now under consideration on 16 August 1968; therefore, the time for the applicant to file a request for correction of any injustice expired on 15 August 1971.  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

WC____  __DL_____  _RV____  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 Crain________
          CHAIRPERSON




INDEX

CASE ID
AR20060015919
SUFFIX

RECON

DATE BOARDED
20070531
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19680816
DISCHARGE AUTHORITY
AR 635-204  
DISCHARGE REASON
Conviction by a general court-martial
BOARD DECISION
NC
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.