RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 August 2007
	DOCKET NUMBER:  AR20070000976 


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Linda Simmons

Chairperson

Ms. Ernestine Fields

Member

Mr. Randolph Fleming

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 that his undesirable discharge be upgraded.

2.  The applicant states, in effect, that although he was with a couple of Soldiers who had marijuana, he was not using the substance and should not have been penalized. 

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

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests clemency based upon post service conduct.

2.  Counsel states that the applicant’s offenses were committed over 40 years ago, that he has more than paid his debt to the military and to society, and that it is time to erase the stain on his service record and help restore the honor he has long sought. 

3.  Counsel provides a statement, dated 1 July 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 24 January 1966.  The application submitted in this case is dated 
18 December 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 7 January 1963.  He successfully completed basic combat training.  While in advanced individual training, on 14 May 1963, nonjudicial punishment was imposed against the applicant for two specifications of failure to repair.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.   

4.  On 24 September 1963, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 23 August 1963 to 
10 September 1963.  His punishment consisted of a reduction to E-1, restriction, and extra duty. 

5.  On 5 November 1963, nonjudicial punishment was imposed against the applicant for being AWOL from 1 November 1963 to 3 November 1963.  His punishment consisted of an oral admonition. 

6.  On 11 February 1964, nonjudicial punishment was imposed against the applicant for being AWOL from 4 February 1964 to 5 February 1964.  His punishment consisted of a reduction to E-2 and restriction. 

7.  On 1 September 1965, in accordance with his pleas, the applicant was convicted by a general court-martial of two specifications of AWOL (from 
4 August 1964 to 8 August 1964 and from 15 August 1964 to 13 July 1965).  He was sentenced to be discharged with a bad conduct discharge, to forfeit all pay and allowances, to be confined at hard labor for 12 months, and to be reduced to E-1.  On 24 September 1965, the convening authority approved the sentence.  

8.  On 4 November 1965, the United States Army Board of Review, Office of The Judge Advocate General, approved only so much of the sentence as provided for a bad conduct discharge, total forfeitures, confinement at hard labor for 
9 months, and reduction to E-1.  The findings of guilty and the modified sentence were affirmed.  On 17 December 1965, the applicant’s petition for a grant of review of the decision of the Board of Review was denied by the United States Court of Military Appeals.  

9.  On 6 January 1966, the convening authority ordered the applicant’s bad conduct discharge executed. 

10.  Accordingly, the applicant was discharged with a bad conduct discharge on 
24 January 1966 under the provisions of Army Regulation 635-204 for conviction by a general court-martial.  He had served 1 year, 6 months, and 11 days of total active service with 517 days of lost time due to AWOL and confinement.   

11.  On 7 April 1966, the Secretary of the Army substituted an undesirable discharge for the applicant’s bad conduct discharge as a matter of clemency.  He was issued a DD Form 214 (Report of Transfer or Discharge) which shows he received an undesirable discharge.         

12.  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.  

13.  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.  

14.  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 contentions that he was with a couple of Soldiers who had marijuana, that he was not using the substance, and that he should not have been penalized were noted.  However, there is no evidence of record which shows he was penalized for marijuana abuse.

2.  The applicant's record of service included four nonjudicial punishments, one general court-martial conviction, and 517 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 a general or an honorable discharge.

3.  Records show the applicant should have discovered the alleged injustice now under consideration on 24 January 1966; therefore, the time for the applicant to file a request for correction of any injustice expired on 23 January 1969.  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

LS______  __EF____  _RF___  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.


____Linda Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20070000976
SUFFIX

RECON

DATE BOARDED
20070807
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19660124
DISCHARGE AUTHORITY
AR 635-204  
DISCHARGE REASON
Conviction by a general court-martial
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.