RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 June 2007
	DOCKET NUMBER:  AR20070000108 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Ms. LaVerne M. Douglas

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, in effect, that his bad conduct discharge be upgraded.

2.  The applicant states, in effect, that he has been a good citizen since his discharge and would like to take advantage of the Veteran's Benefits. 

3.  The applicant provides no additional documentary evidence in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the Regular Army on 26 February 1971.  He completed basic training and advanced individual training and was awarded the military occupational specialty (MOS) 71B (Clerk).  The highest grade the applicant held was private first class/pay grade E-1. 

2.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that during his active duty tenure, he earned the National Defense Service Medal, the Armed Forces Expeditionary Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar with M-16 Rifle.

3.  The applicant's records are incomplete and do not show any significant acts of valor during his military service.

4.  On 20 January 1972, the applicant pled guilty at a General Court-Martial to two specifications of committing robbery on 28 September 1971 and of two specifications of committing robbery on 29 September 1971.  The Court sentenced the applicant to forfeit all pay and allowances, reduction to the rank of private/ pay grade E-1, confinement for 10 years, and a bad conduct discharge.

5.  On 17 March 1972, the convening authority approved only so much of the sentence extending to total forfeiture, reduction to the rank of private/pay grade 
E-1, confinement for 11 months, and a bad conduct discharge.  The convening authority further suspended confinement in excess of five months for a period of six months.

6.  On 7 August 1972, United States Army Court of Military Review affirmed the findings of guilty and sentence as approved by the convening authority.




7.  Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 599, dated 25 May 1972, announced the applicant's sentence had been affirmed and the provisions of Article 71c, Uniform Code of Military Justice, had been complied with.  
The Convening Authority ordered the sentence, including the bad conduct discharge, executed.

8.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of chapter 11 of Army Regulation 645-200 (Separation of Enlisted Personnel) on 29 September 1972, with a bad conduct discharge as a result of court-martial.  His DD Form 214 also shows that during this period of enlistment he completed 11 months and 8 days of active military service with 239 days of lost time due to confinement.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect, at the time established policy and procedures for separating members with a dishonorable or bad conduct discharge.  The regulation provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  It further provided the appellate review must be completed and the affirmed sentence ordered duly executed.

10.  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.

11.  Army Regulation 635-200, paragraph 3-7a, 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.



12.  Army Regulation 635-200, paragraph 3-7b, 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 contends his bad conduct discharge should be upgraded because he has been a good citizen since his discharge and wants access to Veterans Benefits.

2.  The applicant's records show he was tried and convicted by a general court-martial for committing robbery on 28 September 1971 and on 29 September 1971.  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 bad conduct discharge appropriately characterizes the misconduct for which the applicant was convicted.  

3.  Accordingly, the type of discharge directed and the reason for discharge are appropriate considering all the facts of the case.

4.  By law, any redress by this Board of the finality of a court-martial conviction 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 nor has his post service conduct merited an upgrade.  As a result, there is insufficient basis for a grant of clemency in the form of an honorable or a general discharge.

6.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for Veteran's Benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LMD__ _  _EEM___  _RNN___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




_LaVerne M. Douglas_
           CHAIRPERSON




INDEX

CASE ID
AR20070000108
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
29 September 1972
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON
CH 11 GCM
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.