RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 January 2008
	DOCKET NUMBER:  AR20070002465 


	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

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. Gerald J. Purcell

Chairperson

Mr. Donald L. Lewy 

Member

Mr. David W. Tucker

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 discharge.

2.  The applicant states, in effect, he was told that his discharge would be automatically upgraded after he served his 6 month sentence.

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

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show that he entered active duty as a member of the Army of the United States on 12 December 1968.  

3.  On 5 March 1970, the applicant was granted 30 days of emergency leave due to the death of his father.

4.  On 3 February 1971, the applicant was convicted by a Special Court-Martial of being absent without leave (AWOL) during the period on or 25 March 1970 to on or about 11 November 1970. 

5.  On 9 February 1971, the sentence was approved and the applicant was sentenced to reduction to private/pay grade E-1, confinement at hard labor for 
2 months, and restriction to the limits of the Company Area.  

6.  On 16 May 1974, the applicant was convicted by a General Court-Martial of being AWOL during the period on or about 23 March 1971 through on or about 
7 January 1974.

7.  The applicant was sentenced to reduction to private/pay grade E-1, forfeiture of all pay and allowances, confinement at hard labor for six months, and to be separated from the service with a bad conduct discharge.  The sentence was adjudged on 12 March 1974.

8.  On 3 October 1974, after completing all required post-trial and appellate reviews, the Convening Authority directed execution of the Bad Conduct Discharge.

9.  The applicant's DD Form 214 shows that he was discharged as a result of court-martial on 25 October 1974, under the provisions of Army Regulation    635-200 (Personnel Separations).  The applicant completed 3 years, 9 months, and 2 days of creditable military service during this period.

10.  This form further shows the applicant's character of service as "UNDER OTHER THAN HONORABLE CONDITIONS" and that he was issued a DD Form 259A (Bad Conduct Discharge Certificate)."  Army Regulation 635-5-1 shows the separation code JJD indicates separation of enlisted personnel as a result of court-martial.  

11.  This DD Form 214 also shows the applicant had 762 days of time lost due to being AWOL during his military service.

12.  The applicant contends that after being sent home for 30 days for his father's funeral, he suffered from emotional stress which resulted in his failure to return to duty.  The applicant argues that he was advised that if he served his sentence for being AWOL, his discharge would be automatically upgraded.  The applicant concludes that he is attempting to receive Veterans benefits and that he has served his country and deserves the benefits.

13.  Army Regulation 635-200 provided for separation of enlisted personnel with a dishonorable discharge pursuant to an approved sentence of a general court-martial.  This regulation also 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.  

14.  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.

15.  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.

16.  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 contends that his discharge should be upgraded because he has served his country and is entitled to receive benefits.  The applicant also contends that he was informed his bad conduct discharge would be automatically upgraded.

2.  The U.S. Army has never had a policy where a punitive discharge adjudged by a court-martial was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The ABCMR will not change or upgrade a discharge unless it is determined that the characterization of service or the reason for discharge was improper or inequitable or both.

3.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for benefits.

4.  The applicant's records clearly show he was tried and convicted by a Special Court-Martial for being AWOL and a General Court-Martial for being AWOL.  His records show that he was AWOL a total of 762 days during his military service.  



5.  The applicant records also clearly show that it was the intent of the discharge authority to discharge the applicant with a Bad Conduct Discharge and that his DD Form 214 incorrectly shows the character of service as "UNDER OTHER THAN HONORABLE CONDITIONS."  

6.  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 discharge appropriately characterizes the misconduct for which the applicant was convicted.  

7.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_DWT____  __DLL__  _GJP ___  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.





__Gerald J. Purcell_
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
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.