RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  03 June 2008
	DOCKET NUMBER:  AR20080000798 


	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.  




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 bad conduct discharge (BCD) be upgraded to a more favorable discharge. 

2.  The applicant states that he was still in his teens when the offenses occurred and he should have been punished for his actions; however, not as severe as he was.  He goes on to state that he realizes that it was during a time of war; however, he was away from home for the first time and his experiences to a new world or a new way of living was overwhelming.  He continues by stating that in 1970 he requested an upgrade of his discharge to no avail and now that he is aging, he is being asked about his discharge at every corner he asked for a job and while he admits that he made a big mistake, he is asking for leniency from the Board. 

3.  The applicant provides three third party character references, a copy of his DD Form 214, a copy of his enlisted qualification record (DA Form 20) and a copy of the review of the Staff Judge Advocate pertaining to his court-martial. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 6 June 1950 and enlisted with parental consent in Chicago, Illinois on 29 February 1968 for a period of 3 years and training in the construction utilities career management field.  

2.  He completed his basic and advanced individual training (AIT) at Fort Leonard Wood, Missouri and was awarded the primary military occupational specialty (PMOS) of a utilities worker (51A10).

3.  Upon completion of his AIT he was transferred to Fort Benning, Georgia to undergo airborne training.  He completed airborne training and was transferred to Fort Bragg, North Carolina on 14 August 1968.  He was advanced to the pay grade of E-3 on 9 September 1968.  

4.  Although all of the actual documents are not contained in the available records, his records indicate that nonjudicial punishment was imposed against the applicant on at least three occasions, one of the incidents involved failure to obey a lawful order from a superior noncommissioned officer on 26 November 1968.   

5.  On 29 January 1969, charges were preferred against the applicant for the wrongful appropriation of two automobiles on 12 November and 21 November 1968.  The applicant again wrongfully appropriated another automobile on 7 February 1969 and that specification was also added to the charge against the applicant. 

6.  On 23 April 1969, he was convicted, pursuant to his pleas, by a general  court-martial of three specifications of wrongful appropriation of three different automobiles.  He was sentenced to confinement at hard labor for 4 years, a forfeiture of all pay and allowances and a dishonorable discharge.  However, on 9 May 1969, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 18 months, a forfeiture of all pay and allowances and a dishonorable discharge.  The applicant was transferred to the United States Disciplinary Barracks at Fort Leavenworth, Kansas on 24 May 1969 to serve his sentence. 

7.  On 23 June 1969, the United States Army Court of Military Review  reassessed the applicant’s sentence and affirmed only so much of the sentence as provided for 12 months confinement at hard labor, a forfeiture of all pay and allowances and a dishonorable discharge.

8.  On 14 August 1969, the applicant submitted an application for restoration to duty in order to receive a discharge under honorable conditions.

9.  On 7 October 1969, the applicant’s request for restoration to duty and clemency on the sentence to confinement was disapproved.  However, the Secretary of the Army directed that the applicant be furnished a Bad Conduct Discharge.

10.  On 9 October 1969, the United States Army Court of Military Appeals denied the applicant’s petition for review of his case.

11.  On 3 November 1969, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 1 year and 10 days of total active service and had 240 of lost time due to confinement.

12.  The applicant applied to this Board on 26 October 1970 for an upgrade of his discharge and at that time offered no argument or matters of mitigation with his request.  The Board denied his request on 22 December 1971.

13.  Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.

14.  Paragraph 3-7 also 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 trial by general court-martial was warranted by the gravity of the serious offenses with which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

2.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his record of undistinguished service and repeated misconduct.    

3.  Many Soldiers of the same age as the applicant serve their country honorably and do so without stealing from their fellow Soldiers.  In the applicant’s case, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Additionally, there is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition. 

4.  While the applicant may have matured and become a productive citizen, his discharge reflects his conduct and performance during the period in which he was serving his country and after a thorough review of the available records, there appears to be an insufficient basis for clemency and an insufficient basis upon which to base an upgrade of the applicant’s bad conduct discharge to an honorable or general discharge.  In view of the foregoing, there is no basis for granting the applicant's request.  

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.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.





      ___        XXX                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000798



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508