IN THE CASE OF:	  

		BOARD DATE:	        31 July 2008

		DOCKET NUMBER:  AR20080007251 


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.

2.  The applicant states, in effect, that he served honorably for two years and that he was young and afraid and would be shot so he defended himself.  The applicant further states that his type of discharge was too severe.  

3.  The applicant provides no additional documentation in support of this case.

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 enlisted in the Regular Army on 4 April 1966 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).
3.  On 23 December 1966, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying lawful orders from two noncommissioned officers (NCOs), wrongfully kicking out four window panes, and wrongfully communicating a threat to a fellow Soldier.

4.  On 24 January 1968, the applicant was convicted, by a special court-martial of showing disrespect to a superior officer.  His sentence consisted of a reduction to the grade of Private (PVT)/E-1, forfeiture of $68.00 per month for one month, and confinement at hard labor for one month.

5.  On 17 April 1968, the applicant was convicted, pursuant to his plea, by a special court-martial of assaulting an NCO.  His sentence consisted of a reduction to the grade of PVT/E-1 and confinement at hard labor for three months.

6.  On 18 September 1968, the applicant was convicted, in accordance to his pleas, by a general court-martial of assaulting a fellow Soldier.  His sentence consisted of a reduction to the grade of PVT/E-1, forfeiture of $100.00 per month for 12 months, confinement at hard labor for one year, and a bad conduct discharge. 

7.  On 30 October 1968, the United States Army Board of Review affirmed the finding of guilty and the sentence.

8.  On 3 March 1969, the applicant received a bad conduct discharge under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) by reason of court-martial.  He had completed 2 years and 6 days of creditable active military service with 329 days of lost time due to confinement.

9.  Army Regulation 635-200 (Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  At that time, chapter 11 provided policy for the separation of members with a dishonorable or bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  It stated that discharge would be accomplished only after the completion of the appellate process and affirmation of the court-martial findings and sentence.

10.  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.

11.  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.

12.  In accordance with Title 10 of the 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's trial by court-martial was warranted by the gravity of the offense for which he was charged and convicted.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the court-martial process.  The applicant's contentions relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the appellate process.  The discharge appropriately characterizes the misconduct for which the applicant was convicted.  

2.  The applicant's DD Form 214 with the period ending 3 March 1969 inadvertently shows an upgrade.  Instead of showing a bad conduct discharge on his DD Form 214 under characterization it shows the entry "UNDER CONDITIONS OTHER THAN HONORABLE."

3.  By law, the ABCMR may not disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

4.  The applicant's entire record of service was considered in this case.  However, given the seriousness of the offense for which he was convicted and his prior misconduct, it is determined that clemency is not warranted in this case.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ___xx___  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.



      ________xxxx__________
               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)                                         AR20080007251



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ABCMR Record of Proceedings (cont)                                         AR20080007251



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