IN THE CASE OF:	

		BOARD DATE:	14 August 2008  

		DOCKET NUMBER:  AR20080007413 


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 that his bad conduct discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that all the information in his records concerning his bad conduct discharge was true, because at the time he was an alcoholic and a substance abuser that was out of control.  He apologized for the events that happened at that time, but since 1980, he is a former alcoholic and substance abuser and a productive tax paying citizen.  He would like to have his bad conduct discharge upgraded to a general discharge, so that he may obtain medical assistance in the future.

3.  The applicant provides a copy of a personal statement, dated 14 April 2008.

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 personnel record shows he enlisted in the Regular Army on 31 July 1972.  He completed the necessary training and was awarded the military occupational specialty (MOS) 64C (Motor Transport Operator).  His highest grade held was private first class, E-3.

3.  Between 8 September 1972 and 8 July 1974 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five occasions for being absent without leave (AWOL) during the periods 1 September 1972 to 6 September 1972 and 
1 November 1972 to 7 December 1972; failing to go to his appointed place of duty; operating a passenger car while intoxicated; and for wrongfully possessing a quantity of controlled substance, marijuana.

4.  Special Court-Martial Order Number 5, dated 17 August 1973, shows the applicant was convicted by a special court-martial for wrongfully appropriating a government 1/2 ton pickup truck, a value of $1499.70, the property of the U.S. Government; and stealing a General Electric Clock Radio and Yashika 8mm movie camera a value of $160.00; the property of a noncommissioned officer.  His sentence consisted of forfeiture of $200.00 per month for four months, confinement for four months (suspended for four months), and reduction to private, E-1.  

5.  On 16 August 1973, the convening authority approved the sentence and ordered it executed, but reduced the sentence that provided for forfeiture of $200.00 per month for four months to $100.00 a month for four months, and suspended the sentence to confinement for four months.

6.  On 23 August 1973, a corrected copy of Special Court-Martial Order Number 5, dated, 17 August 1973, was published.

7.  On 23 August 1973, a corrected copy of the convening authority’s approval of the court-martial sentence, as modified, and the execution of the sentence was published.

8.  On 18 September 1973, the suspension of confinement was vacated and the applicant was confined for four months.  On 5 November 1973, the remainder of the forfeiture was suspended until 27 December 1973.  On 3 December 1973, the remainder of the confinement was suspended until 27 December 1973.

9.  Between 8 August 1974 and 23 September 1974 the applicant accepted NJP under the provisions of Article 15 of the UCMJ, on two occasions for failing to go to his appointed place of duty, and for AWOL during the periods 19 July 1974 to  
20 July 1974 and 13 August 1974 to 14 August 1974.  On 20 August 1974, the applicant elected to appeal the NJP.  However, the appeal was denied based on the opinion that the "proceedings were conducted in accordance with law and regulations and that the punishments imposed were not unjust and disproportionate to the offenses committed."

10.  On 12 December 1974, the applicant was convicted by a special court-martial for AWOL during the periods 5 October 1974 to 7 October 1974, 
8 October 1974 to 9 October 1974, and 13 October 1974 to 22 October 1974; for escaping from the custody of the III Corp Provost Marshall Office on 28 October 1974; and committing an assault upon a Soldier by striking him with dangerous weapon, a knife.  His sentence consisted of forfeiture of $200.00 per month for four months, confinement for four months, and a bad conduct discharge.  The convening authority approved a sentence of a Bad Conduct Discharge, confinement for 45 days, and forfeiture of $200.00 per month for four months.

11.  Special Court-Martial orders Number 7, dated 8 January 1975, shows that the applicant was restored to duty pending appellate review.  Special Court-Martial Order Number 2, dated 13 January 1976 shows the applicant's sentence was set aside on 16 July 1975 and a rehearing by a special court-martial was authorized.

12.  Special Court-Martial Order Number 32, dated 7 April 1976, shows the applicant was arraigned and tried on a rehearing.  The court found the applicant guilty on all original AWOL charges.  Not guilty on the escape charge, and guilty on the assault charge.  The applicant was found guilty of two additional AWOL charges.

13.  United States Army Court of Military Review, dated 29 July 1976, shows that the findings of guilty were affirmed but the court affirmed only so much of the approved sentence as provides for a bad conduct discharge and confinement for 30 days.  

14.  Special Court-Martial Order Number 58, dated 17 August 1976, affirmed the sentence.  The sentence, as modified, was duly executed.  That portion of the sentence pertaining to confinement had been served.

15.  On 22 September 1976, the applicant was discharged as a result of a court-martial and issued a Bad Conduct Discharge Certificate, with service 

characterized as under other than honorable conditions.  He had completed  
2 years, 3 months, and 96 days of Net Active Service This Period and had accrued 683 days of time lost and 150 days excess leave.

16.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge; provided that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and stated that the appellate review must be completed and the affirmed sentence ordered duly executed.

18.  Court-martial convictions stand as adjudged or as 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to a general discharge.

2.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  The applicant's apology and his ability to overcome his alcohol and substance abuse is commendable.  However, given the seriousness of the offenses for which he was convicted, it was not considered to be sufficient to warrant clemency in this case.  As such, there is no basis upon which to support the applicant's request to upgrade his bad conduct discharge to a general discharge.
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 sufficient evidence that would satisfy this requirement or to show clemency is warranted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ___X___  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.



      __________X____________
               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)                                         AR20080007413



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ABCMR Record of Proceedings (cont)                                         AR20080007413



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