IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080006099 


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 an upgrade of his discharge.

2.  The applicant states that he was a young Soldier at the time and deserves a favorable discharge for serving his country.  

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 born on 7 August 1951 and enlisted in the Regular Army at the age of nearly 21 for a period of 2 years on 26 July 1972.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant's records further show that he was awarded the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His records do not show any significant acts of valor during his military service.

4.  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 14 November 1972, for failing to go at the appropriate time to his appointed place of duty, on or about 13 November 1972.  His punishment consisted of a forfeiture of 1 week’s pay for 1 month, and 14 days of restriction, and extra duty; 

	b.  on 7 May 1973, for failing to go at the prescribed time to his appointed place of duty.  His punishment consisted of a forfeiture of $35.00 pay per month for 1 month, 14 days of restriction and extra duty, and reduction to the rank/grade of private (PVT)/E-1 (suspended for 90 days); and 

	c.  on 17 August 1973, for willfully disobeying a lawful order from a superior noncommissioned officer, on or about 7 June 1973; failing to go at the prescribed time to his appointed place of duty, on or about 3 June 1973; and being absent without leave (AWOL) during the period on or about 8 June 1973 through on or about 11 June 1973.  His punishment consisted of 45 days of restriction, 30 days of extra duty, and a forfeiture of $153.00 pay for 1 month.

5.  On 15 February 1974, the applicants immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his numerous offenses and pending charges.  The immediate commander further remarked that the “applicant was totally unmanageable and in a state of revolt against military authority and that he was a totally unsatisfactory individual---not a Soldier.”  The applicant was furnished a copy of the Bar to Reenlistment Certificate but elected not to submit a statement on his own behalf.  


6.  On 27 February 1974, the applicant’s battalion commander approved the Bar to Reenlistment Certificate.

7.  On 1 April 1974, the applicant pled guilty at a Special Court-Martial to one specification of wrongfully having in his possession or direct control 0.25 milliliters, more or less, of heroin, on or about 21 June 1973, and two specifications of willfully disobeying a lawful order from a superior noncommissioned officer, on or about 25 October 1973 and on or about 5 November 1973.  The Court found the applicant guilty of the charges and specifications and sentenced him to reduction to PVT/E-1, a forfeiture of $200.00 pay per month for 4 months, and confinement at hard labor for 4 months.  The sentence was adjudged on 1 April 1974.

8.  On 13 May 1974, the convening authority approved the applicant's sentence and ordered it executed.  The applicant was transferred to the U.S. Army Confinement Facility, Mannheim, Germany, to serve his sentence to confinement.  

9.  On an unknown date in 1974, the applicant was transferred to Fort Riley, Kansas. 

10.  Headquarters, U.S. Army Retraining Brigade, Fort Riley, Kansas, Special Court-Martial Order Number 1451, dated 15 July 1974, shows that the unexecuted portion of the approved sentence to a forfeiture of $200.00 pay per month for 4 months was suspended until 31 July 1974.

11. On 4 August 1974, the applicant departed his unit in an AWOL status.  He was apprehended and was returned to his unit on 4 September 1974.  

12.  On 26 September 1974, the applicant departed his unit in an AWOL status again and was subsequently dropped from the Army rolls on the same date.  During this period of AWOL status, the applicant's records show that he was shot, with others, while attempting to burglarize a warehouse.  He was arrested by civil authorities, hospitalized, and convicted of attempted burglary, and given a probated sentence on 17 October 1974.  The judge ordered him to return to his unit; but, the applicant failed to do so. 

13.  On 26 November 1974, the applicant was apprehended by military authorities in Houston, Texas, and was subsequently transferred to Fort Hood, Texas.


14.  On 13 January 1975, the applicant pled guilty at a Special Court-Martial to two specifications of being AWOL during the periods on or about 5 August 1974 through on or about 4 September 1974 and on or about 16 September 1974 through on or about 26 November 1974.  The Court found him guilty of the charges and specifications and sentenced him to a bad conduct discharge, confinement at hard labor for 100 days, reduction to PVT/E-1, and a forfeiture of $229.00 pay per month for 3 months.  The sentence was adjudged on 13 January 1975.

15.  On 5 February 1975, 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.

16.  Headquarters U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, Special Court-Martial Order Number 182, dated 4 April 1975, shows that after serving the period of confinement adjudged on 13 January 1975, the applicant was ordered restored to duty pending completion of appellate review.

17.  The applicant’s records show that he was transferred to the Personnel Confinement Facility at Fort Sill, Oklahoma, on 20 April 1975, and was assigned duties as a duty Soldier.  However, for reasons not on file, he was confined on 10 June 1975, pending a Special Court-Martial.  He was released from confinement on 7 July 1976 after the Special Court-Martial action was dropped in lieu of the applicant’s departure on excess leave.   He was subsequently placed on excess leave pending appellate review of his bad conduct discharge.

18.  On 31 December 1975, by letter, the applicant was notified that the U.S. Court of Military Review, upon further review, affirmed the findings of two specifications of AWOL; however, the Court indicated that a previous conviction was erroneously considered, and, therefore, set aside the sentence in his case and authorized a rehearing.  He was also notified that his excess leave would be terminated and that he should report to Fort Sill, Oklahoma, for further attachment to Fort Hood, Texas, for a rehearing.

19.  On 8 January 1976, the applicant’s excess leave was revoked and the applicant was ordered back to duty at Fort Hood, Texas, for a re-trial of his original court-martial, based on appellate review which agreed in the findings of guilty, but found a legal technicality that required a rehearing.


20.  On 20 January 1976, the applicant pled guilty at a Special Court-Martial to two specifications of being AWOL during the periods on or about 5 August 1974 through on or about 4 September 1974 and on or about 16 September 1974 through on or about 26 November 1974.  The Court found him guilty of the charges and specifications and sentenced him to reduction to PVT/E-1, forfeiture of $229.00 pay per month for four, confinement at hard labor for 45 days, and a bad conduct discharge.  The sentence was adjudged on 20 January 1976.

21.  On 27 February 1976, the convening authority approved the sentence.  He credited the applicant with having served the sentence to confinement.  He ordered the record of trial forwarded to the Judge Advocate General of the Army for review by the Court of Military Review.  Pending completion of appellate review, the applicant was ordered retained in his present command.

22.  On 16 August 1976, the U.S. Army Court of Military Review denied the applicant's petition for a grant of review.

23.  Headquarters, U.S. Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, General Court-Martial Order Number 42, dated 19 August 1976, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

24.  The applicant was discharged from the Army on 30 August 1976.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged as a result of court-martial, with a character of service of under other than honorable conditions.  This form further shows the applicant completed 2 years and 1 day of creditable military service.  He also had 314 days of lost time. 

25.  On 30 October 1979, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.  

26.  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.




27.  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.

28.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  Records show that the applicant was 21 years of age at the time of his enlistment and nearly 23 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

3.  The evidence of record shows that the applicant had a history of misconduct; including three instances of an Article 15, a bar to reenlistment, a civil conviction, and two instances of special courts-martial.  His trial by the special court-martial was warranted by the gravity of the offenses charged.  

4.  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.  The applicant’s conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.



5.  After 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 for a grant of clemency in the form of an upgrade to his discharge.  Moreover, through an apparent administrative error, his DD Form 214 shows an "under other than honorable discharge" character of service instead of the sentenced "bad conduct discharge."  Thus, by a windfall, the applicant has already received an upgrade.

6.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20080006099



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ABCMR Record of Proceedings (cont)                                         AR20080006099



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