RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 March 2008
	DOCKET NUMBER:  AR20070013730 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Gerald J. Purcell

Member

Ms. Rea M. 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 to a general.

2.  The applicant states, in effect, that he made a huge error in judgment with his duty performance at the end of his enlistment.  He is now a mature person who has accepted his past errors and is working forward.  He has learned from his mistakes and the majority of his service was done in honor.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), a copy of his work performance appraisal, and five character statements.

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 military service records show that he entered active duty on 20 November 1972.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 94B (Cook).

3.  His records show that he served as a Cook with the Training Brigade at Fort Polk, Louisiana.

4.  Between 25 April 1973 and 27 June 1973, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on three occasions for failing to report to his appointed place of duty twice, once on 24 April 1973 and once on 23 June 1973; for willfully disobeying a lawful order from a superior noncommissioned officer; and for breaking restriction.

5.  On 18 November 1974, the applicant was convicted, contrary to some of his pleas, by a special court-martial of five specifications of pandering on  
30 September 1974.  His sentence consisted of forfeiture of $50.00 per month for three months, confinement for three months, and a bad conduct discharge.  The sentence was approved as adjudged, pending completion of appellate review.

6.  While the applicant was confined at the U.S. Disciplinary Barracks, a clemency consideration and program review was conducted.  Although the Restoration Officer recommended restoration to duty, the Army Clemency and Parole Board denied both clemency and restoration.

7.  Headquarters, U.S. Disciplinary Barracks, Special Court-Martial Order Number 298, dated 2 June 1975 states, in effect, that the United States Army Court of Military Review (ACMR) affirmed the court-martial’s findings of guilty and sentence.  The applicant's bad conduct discharge was ordered to be executed and that the portion of the sentence pertaining to the confinement had been served.

8.  On 17 June 1975, the applicant was discharged as a result of a court-martial and issued a Bad Conduct Discharge Certificate, with service characterized as under other than honorable conditions. He had completed 2 years, 4 months, and 26 days of active service and had accrued 72 days of time lost.

9.  The applicant applied to the Army Discharge Review Board (ADRB) on 
11 March 1980.  On 22 April 1981, ADRB reviewed the applicant's record and determined that his discharge was proper and equitable.  On that basis the applicant’s request for upgrade of his discharge was denied.

10.  The performance appraisal and character statements that the applicant submitted states his character as honest and dependable, and that he is a hard working employee at the WAL-MART Super Store where he works.

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


12.  Court-martial convictions stand as adjudged or as 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 (ABCMR) 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 bad conduct discharge should be upgraded to a general discharge.

2.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  In accordance with the presumption of administrative regularity, it can be presumed that the applicant's entire military record was considered by his court-martial during his trial.  As such, the bad conduct discharge was the appropriate characterization of service.

4.  The performance appraisal and the character statements were noted.  However, they are not sufficiently mitigating to warrant the relief requested.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to correction of his records to show a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RMN__  __GTP__  __RTD___  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.




____Richard T. Dunbar____
          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.