RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   25 September 2007
	DOCKET NUMBER:  AR20070004205 


	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. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Ms. LaVerne Douglas

Member

Mr. Jerome Pionk

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 bad conduct discharge to under honorable conditions. 

2.  The applicant states that he had three honorable discharges from the United States Army before he received his bad conduct discharge.  He further states he will be 70 years old this year and would like his record corrected to reflect his honorable enlisted service.

3.  The applicant provided no supporting documents or 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 enlisted in the Regular Army and entered active duty on 1 August 1956.  Records show that he completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 140.00 (Field Artillery Basic).  The highest rank he attained while serving on active duty was staff sergeant/pay grade E-6.  Upon his discharge on 3 October 1973, the applicant completed 17 years, 1 month, and 21 days of creditable active military service with no time lost during the proceeding two years.  

3.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions:  on 8 October 1963 for 
violation of a lawful order and failure to be at his appointed place of duty; on 13 July 1964, for violating a lawful order; on 3 December 1964, for being absent without authority from his appointed place of duty and for loss of his assigned rifle; and on 11 November 1969, for disobeying a lawful order and for being absent without authority from his appointed place of duty. 

5.  On 2 May 1960, a Summary Court-Martial convicted the applicant of violating Article 121 of the UCMJ for stealing a symphonic stereophonic record player.  The resulting sentence was reduction to private/pay grade E-1, forfeiture of $50.00 for one month, and confinement at hard labor for 3 months.

6.  On 5 December 1960, a Summary Court-Martial convicted the applicant of violating Article 86 of the UCMJ for being absent without leave from on or about 1 November 1960 to 10 November 1960.  The resulting sentence was reduction to private/pay grade E-1, forfeiture of $70.00 pay, and hard labor without confinement for 45 days. 

7.  On 14 October 1963, a Summary Court-Martial convicted the applicant of violating Article 134 of the UCMJ for breaking restriction and violation of a general order under the provisions of Article 92 of the UCMJ.  The resulting sentence was reduction to corporal/pay grade E-4 and forfeiture of $143.33 for one month.

8.  On 17 April 1972, a General Court-Martial convicted the applicant of sodomy with a child under the age of 16 years old and committing a second act of sodomy with a subordinate Soldier.  The General Court-Martial sentenced the applicant to reduction in grade to private/pay grade E-1, forfeiture of all pay and allowances, and ordered him discharged from the service with a bad conduct discharge. 

9.  On 19 May 1972, the General Court Martial convening authority approved the sentence of the applicant's general court-martial on 17 April 1972.  The discharge and forfeiture of pay and allowances was deferred pending review by the United States Court of Military Review. 

10.  On 27 February 1973, the United States Army Court of Military Review affirmed the findings of guilty and the sentence as approved by the convening authority on 19 May 1972.

11.  On 5 June 1973, the United States Court of Military Appeals denied the applicant's petition for a review of his general court-martial dated 17 April 1972.

12.  On 8 June 1973, the applicant's bad conduct discharge was ordered to be executed and the deferment of the forfeitures was rescinded.

13.  On 3 October 1973, the applicant was discharged with a Bad Conduct Discharge Certificate and issued a DD Form 214 with a characterization of service of under conditions other than honorable.  

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and affirmed sentence ordered duly executed.

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.

16.  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 contends that his bad conduct discharge should be upgraded to an under honorable conditions discharge.

2.  The applicant's record of service included four nonjudical punishments under the provisions of Article 15 of the UCMJ for various offenses including being absent with authority and failure to obey lawful orders.  Further, three Summary Courts-Martial convicted him of stealing and AWOL.  Finally, a General Court- Martial convicted him of sodomy of a child and of a subordinate Soldier and discharged him from the service with a bad conduct discharge, forfeiture of all pay and allowances, and reduction to private/pay grade E-1.

3.  The evidence shows that the applicant’s trial by general court-martial was warranted by the gravity of the offense for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

4.  Law prohibits any redress by this Board of the finality of a court-martial conviction.  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.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to general under honorable conditions.  The applicant has provided insufficient justification to upgrade his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___WP__  ___LD___  __JP____  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.




_____William Powers________
          CHAIRPERSON




INDEX

CASE ID
AR20070004205
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070925
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.6800
2.

3.

4.

5.

6.