RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  2 October 2007
	DOCKET NUMBER:  AR20070003905 


	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

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Ann M. Campbell

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. Redmann

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, an upgrade of his discharge. 

2.  The applicant states, in effect, that he was constantly picked on and badgered by others due to his nationality and that he was mistreated by his sergeant.  He further states that his family was going through a hard time and needed him at the time which led him to believe that his chain of command was sincere when he was sent home for an indefinite period of time.  

3.  The applicant provides a self-authored statement in support of his 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 record shows that he enlisted in the Regular Army on 29 December 1967 for a period of 3 years.  Records further show that he completed basic combat training and the highest rank he attained while serving on active duty was private/pay grade E-1.

3.  The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 19 March 1968, for being absent without leave (AWOL) during the period on or about 14 March 1968 through on or about 19 March 1968. 

4.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal date ETS) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that the following entries: 

	a.  AWOL during the period 14 March 1968 through 18 March 1968.
	b.  AWOL during the period 30 March 1968 through 6 April 1968.

	c.  AWOL during the period 8 June 1968 through 15 July 1968.

	d.  AWOL during the period 11 August 1968 through 25 September 1968.

	e.  Confined during the period 26 September 1968 through 4 December 1968.

	f.  AWOL during the period 13 January 1969 through 20 January 1973.

	g.  Confined during the period 31 January 1973 through 15 June 1973.

5.  Item 50 (Synopsis of Specifications, Including date of Offense) of the applicant's DA Form 20B (Insert Sheet to DA Form 20 Record of Court-Martial Convictions) shows that the applicant was AWOL during the period on or about 11 August 1968 through on or about 26 September 1968.

6.  On 10 October 1968, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 11 August 1968 through on or about 26 September 1968.  The applicant was sentenced to confinement at hard labor for 2 months and a forfeiture of $73 pay for 2 months.

7.  Item 50 of the applicant's DA Form 20B also shows that the applicant was AWOL during the period on or about 13 January 1969 through on or about 23 January 1973.

8.  Headquarters, United States Army Training Center, Infantry and Fort Dix, Fort Dix, New Jersey, General Court-Martial Orders Number 71, dated 31 May 1973, show that the applicant was arraigned and tried before a General Court-Martial on 5 March 1973 for being AWOL during the period on or about 13 January 1969 through on or about 23 January 1973.  The applicant pled not guilty to the charge and specification of being AWOL.  The military judge found the applicant guilty of the charge and specification of being AWOL.  The applicant was sentenced to confinement at hard labor for 6 months and to be discharged from the service with a Bad Conduct Discharge.

9.  Headquarters, United States Army Training Center, Infantry and Fort Dix, Fort Dix, New Jersey, General Court-Martial Orders Number 71, dated 31 May 1973, further show that the sentence was adjudged on 4 April 1973 and the convening authority approved only so much of the sentence as provided for a Bad Conduct Discharge and 3 months confinement and except for the Bad Conduct Discharge, ordered the sentence executed on 31 May 1973.  The convening authority forwarded the record of trial to The Judge Advocate General of the Army for review by a Court of Military Review.  Pending completion of appellate review, the applicant was ordered confined at the United States Disciplinary Barracks (USDB), Fort Leavenworth, Kansas.

10.  On 14 June 1973, after completion of all required post-trial and appellate reviews, the convening authority ordered the Bad Conduct Discharge executed.

11.  The applicant was discharged from the Army on 15 June 1973.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows that he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations) as a result of court-martial.  This form further shows the applicant's character of service as under conditions other than honorable and that he had 1,774 days of time lost during his military service.

12.  On 14 April 1977, the Army Board for Correction of Military Records reviewed the applicant's military records and all other available evidence and denied the applicant's request for an upgrade of his discharge.  The proceedings are no longer available.

13.  Army Regulation 635-200 provides for separation of enlisted personnel with a bad conduct discharge based on an approved sentence of a special court-martial imposing a bad conduct discharge.  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.

14.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  Evidence of records shows that the applicant had a history of misconduct to include several occasions of absence without leave, a Special Court-Martial, and a General Court-Martial.  The applicant's 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.

3.  After a 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 to upgrade the applicant's discharge to an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__amc___  __lmd___  __jcr___  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.


							Ann M. Campbell
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20070003905
SUFFIX

RECON

DATE BOARDED
20071002
TYPE OF DISCHARGE
(BCD)
DATE OF DISCHARGE
19730615
DISCHARGE AUTHORITY
AR 635-200, Chap 11
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
106.0008
2.

3.

4.

5.

6.