IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080003928 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his discharge. 

2.  The applicant states that he should have been offered the opportunity to continue his service and show that he would have complied with Army regulations.  He further adds that he believes he dishonored his country, the Army, his family, and himself.  However, since his discharge, he has tried to turn his life around and has been a good citizen.  He fostered 117 children in 17 years, has not been in trouble with the law, and overcame his drinking problem.  He concludes that if he is called to serve today, he would serve.    

3.  The applicant did not provide any additional documentary evidence 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 records show that he was inducted in the Army of the United States on 22 May 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 94A (Food Service Apprentice).  His records further show he was honorably discharged on 15 October 1969 for the purpose of immediate reenlistment, and reenlisted on 16 October 1969.  He was awarded two other MOS’ during his military service:  94B (Cook) and 16B (Hercules Missile Crewman).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4 (Temporary).

3.  The applicant's records also show that he served in Germany from 13 March 1969 to 15 October 1972. 

4.  The applicant’s records further show that he was awarded the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar (M-14).  His records do not show any significant acts of valor during his military service.

5.  On 3 February 1969, the applicant pled guilty at a Special Court-Martial for one specification of being absent without leave (AWOL) from on or about 26 December 1968 through on or about 22 January 1969.  The Court sentenced him to confinement at hard labor for 3 months, forfeiture of $73.00 pay per month for 6 months, and reduction to the rank/grade of private (PVT)/E-1.  The sentence was adjudged on 3 February 1969.

6.  On 4 February 1969, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 3 months, forfeiture of $50.00 pay per month for 6 months, and reduction to PVT/E-1, and ordered the sentence executed, but the execution of that portion adjudging confinement at hard labor for 3 months was suspended for 3 months.

7.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 15 December 1971, for failing to repair, on or about 30 November 1971.  His punishment consisted of forfeiture of $30.00 pay per month for one month and 5 days of extra duty; 

	b.  on 5 January 1972, for being derelict in the performance of his duties as a cook, on or about 1 January 1972.  His punishment consisted of forfeiture of $30.00 pay per month for one month, 14 days of restriction, and 14 days of extra duty; and

	c.  on 28 January 1972, for failing to repair.  His punishment consisted of reduction to private first class (PFC)/E-3, 14 days of restriction, and 14 days of extra duty.  

8.  On 19 January 1973, the applicant pled guilty at a Special Court-Martial to two specifications of being AWOL on or about 11 August 1972 through on or about 14 August 1972; and on or about 18 August 1972 through on or about
10 December 1972.  The Court sentenced him to confinement at hard labor for 4 months, forfeiture of $100.00 pay per month for 4 months, reduction to the rank/grade of PVT/E-1, and a bad conduct discharge.  The sentence was adjudged on 19 January 1973.  

9.  On 22 February 1973, the convening authority approved the sentence and ordered the record of trial forwarded to the Judge Advocate General of the Army for review by a Court of Military Appeals.  Pending completion of appellate review, the applicant was ordered confined at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, or elsewhere as a competent authority may direct. 

10.  On 27 April 1973, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

11.  Headquarters, 101st Airborne Division (Airmobile) and Fort Campbell, Fort Campbell, Kentucky, Special Court-Martial Order Number 64, dated 6 June 1973, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

12.  The applicant was discharged from the Army on 13 June 1973.  The DD Form 214 he was issued shows that he was discharged under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 4 years, 3 months, and 18 days of creditable military service.  He also had 277 days of lost time, 62 days of which was due to AWOL and 215 days of which was due to confinement after normal expiration of term of service (ETS). 

13.  On 7 March 1974, the Army Discharge Review Board denied the applicant's request for an upgrade of his 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 (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.

15.  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.

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 discharge should be upgraded.

2.  The evidence of record shows that the applicant had a history of misconduct and a pattern of indiscipline, including three Article 15s and two Special Courts-Martial.  His trial by Special 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 characterized the misconduct for which the applicant was convicted.  

3.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

4.  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

__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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003928



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ABCMR Record of Proceedings (cont)                                         AR20080003928



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