IN THE CASE OF:	  

	BOARD DATE:	  31 JULY 2008

	DOCKET NUMBER:  AR20080005579 


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, that his bad conduct discharge be upgraded to an honorable or general discharge. 

2.  The applicant essentially feels that he was unjustly discharged.  He also states, in effect, that his discharge should be upgraded because it is preventing him from getting jobs and caused him to be homeless.

3.  The applicant provides a letter, dated 26 February 2008, from a doctor who states that the applicant is being treated for metastatic breast cancer 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's military records show that he enlisted in the Regular Army on 18 October 1972.  He completed basic training at Fort Polk, Louisiana, then was reassigned to Fort Hood, Texas for on-the-job training/advanced individual training, and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He remained at Fort Hood, Texas for his initial permanent duty assignment.

3.  On 21 January 1974, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for being incapacitated for the proper performance of duty as a result of previous indulgence in intoxicating liquor.  His punishment consisted of forfeiture of $25.00 pay per month for 1 month and extra duty for 7 days, the latter of which was suspended until 27 February 1974.  Although this NJP does not show that he was reduced in rank, Headquarters, 1st Cavalry Division, Fort Hood Special Orders Number 27, dated 6 February 1974, show that the applicant was reduced in rank and pay grade from private first class (PFC)/E-3 to private (PVT)/E-2 effective 21 January 1974.

4.  On 6 June 1974, the applicant accepted NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of forfeiture of $40.00 pay per month for 1 month, extra duty for 5 days, and reduction in rank and pay grade from PFC/E-3 to PVT/E-2, the latter of which was suspended for 90 days.

5.  On 19 November 1974, the applicant was convicted by a general court-martial for, in conjunction with another Soldier, committing assault upon two other Soldiers by cutting them with a machete, a means likely to produce grievous bodily harm.  He was sentenced to confinement at hard labor for 1 year, to forfeit all pay and allowances, and to be discharged from the service with a bad conduct discharge.  He was also placed in confinement on that date.  On 20 January 1975, the applicant's sentence was approved, with the forfeiture of all pay and allowances becoming due on and after this date.  The applicant's record of trial was also forwarded for appellate review.  

6.  On 19 February 1975, the uncollected portion of the applicant's sentence to forfeiture of all pay and allowances as was in excess of forfeiture of $160.00 pay per month for each month thereafter was suspended until such time as the applicant's sentence was ordered into execution, at which time, unless the suspension was sooner vacated, the suspended portion would be remitted without further action.

7.  On 20 August 1975, the applicant, having served the period of confinement adjudged on 19 November 1974, was restored to duty.  On 10 September 1975, he was placed in an excess leave status pending appellate review of his case.

8.  Headquarters, 9th Infantry Division and Fort Lewis, Fort Lewis, Washington General Court-Martial Order Number 4, dated 3 February 1976, shows that the applicant's sentence to a bad conduct discharge, forfeiture of all pay and allowanced becoming due on and after the date of the convening authority's action, and confinement at hard labor for 1 year had been affirmed.  Pursuant to a court-martial order, dated 19 February 1975, that portion of the applicant's sentence adjudging forfeiture of all pay and allowanced as was in excess of forfeiture of $160.00 pay per month for each month thereafter was automatically remitted effective 3 February 1976; the orders ordered the execution of the applicant's bad conduct discharge.  

9.  On 17 February 1976, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial order, and was issued a DD Form 259A (Bad Conduct Discharge Certificate).  Item 27 (Remarks) of his DD Form 214 essentially shows that the narrative reason for his discharge was as a result of a court-martial. 

10.  The applicant essentially feels that he was unjustly discharged.  He also stated, in effect, that his discharge should be upgraded because it is preventing him from getting jobs and caused him to be homeless.

11.  The applicant provided a letter, dated 26 February 2008, in which a doctor essentially stated that the applicant is being treated for metastatic breast cancer.

12.  Title 10, United States Code, section 1552, as amended does not permit any redress by this Board that 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.

13.  Paragraph 3-7a of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.

14.  Paragraph 3-7b of the same regulation 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.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to an honorable or general discharge.

2.  The applicant's contention that he was unjustly discharge was noted; however, he provided no evidence to support his contention.

3.  The fact that the applicant stated that his discharge should be upgraded because it is preventing him from getting jobs and caused him to be homeless was also noted.  While the applicant's personal situation is regrettable, there are no provisions for upgrading a discharge solely for the purpose of improving employment or housing prospects.

4.  Additionally, the fact that the applicant provided a letter which essentially stated that he is being treated for metastatic breast cancer was noted.  Again, while it is unfortunate that the applicant is undergoing treatment for cancer, it is not relevant to the type of discharge he was given more than 33 years ago.

5.   The applicant’s entire record of service was considered; however, the fact that the applicant was tried and convicted by a general court-martial and accepted NJP under Article 15 of the UCMJ on two occasions clearly shows that the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The evidence of record shows that the applicant was 
discharged pursuant to a duly reviewed and affirmed general court-martial order, and there is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  

6.  After a thorough review of the available records, there was no cause 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 upgrading the applicant's 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)                                         AR20080005579



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ABCMR Record of Proceedings (cont)                                         AR20080005579



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