IN THE CASE OF:	  

		BOARD DATE:	  16 December 2008

		DOCKET NUMBER:  AR20080011663 


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 (BCD) be upgraded to a general discharge (GD), under honorable conditions.

2.  The applicant states, in effect, that he would like to have his discharge changed to honorable or a GD under honorable conditions.  He is almost 66 years old and has led a good American life.  He has never been in any type of trouble with any law enforcement.  He was very young and made only this one mistake at the age of 19.  His trial record will show the reason he broke out of the stockade in Fort Carson, Colorado.  He had no contact with his 16-year old wife because the company clerk was holding all communications and he had no idea where or how his wife was or where she was.  She received no mail from him.  He has one copy of his Record of Trial (DD Form 490), dated 21 September 1962.  He states that there are a lot of reasons for his bad decisions at that time.  He knows this was a big mistake but he needed to know how his wife was.  He was in full service to his nation for 39 months with only one adverse action and no other, "with 13 months of service in Korea."

3.  The applicant provides a copy of his DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 27 July 1961 and 30 October 1962, and a copy of his Honorable Discharge Certificate (DD Form 256A) in support of his request.


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 he entered on active duty 6 July 1959 at the age of 17 years, 1 month, and 6 days.  His date of birth is 1 June 1942.  He was trained as a heavy weapons infantryman in military occupational specialty 112.  He was promoted to pay grade E-3 on 14 April 1960.

3.  On 12 September 1960, while serving in Korea, the applicant was convicted by a summary court-martial of failing to obey a lawful regulation and of wrongfully communicating a threat to a noncommissioned officer.  His sentence consisted of 30 days restriction and a forfeiture of pay.

4.  On 10 February 1961, the applicant was convicted by a summary court-martial of being in an off limits area.  His sentence consisted of a reduction to pay grade E-2 and a forfeiture of pay.

5.  The applicant served in Korea from 9 March 1960 to 28 March 1961.

6.  The applicant served until he was honorably discharged on 27 July 1961 for immediate reenlistment.  He reenlisted on 28 July 1961.

7.  In accordance with his pleas, the applicant was found guilty by a general court-martial on 7 September 1962, of being absent without leave (AWOL) from  2 March 1962 to 15 June 1962 and of attempting to escape on 27 June 1962.  His sentence consisted of a BCD.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a Board of Review.  Pending completion of the review, the applicant was retained in the command.

8.  The applicant's Record of Trial contains a copy of a DA Form 19-24 (Statement) and source documents which indicate that while a prisoner of the post stockade, Fort Carson, Colorado, and while on a work detail along Highway 115 and the Fort Carson west boundary near the enlisted dependents quarters, he broke from the work detail and was found hiding in the underbrush by a guard. He was returned to the post stockade.

9.  On 23 October 1962, the Office of the Judge Advocate General affirmed the findings and sentence as provided by the convening authority.

10.  The provisions of Article 71(c) having been complied with, the sentence was ordered executed on 26 October 1962.

11.  On 30 October 1962, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued a BCD.  He had a total of 8 months and 25 days of creditable service during this enlistment and had 191 days of time lost due to AWOL and confinement.

12.  The applicant's case was ineligible for review by the Army Discharge Review Board due to his conviction by a general court-martial.

13.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to change a court-martial 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.

14.  Army Regulation 635-204 (Personnel Separations Dishonorable and Bad Conduct Discharge), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 1(b) of the regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentences ordered duty executed.

15.  Army Regulation 635-200 (Personnel Separations), 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulation.

2.  The evidence of record shows that the applicant was convicted by two summary courts-martial for failing to obey a lawful regulation, of wrongfully communicating a threat to an NCO, and for being in an off limits area; and a general court-martial for AWOL and attempting escape.  He was discharged pursuant to the sentence of a general court-martial and was issued a BCD after the sentence was affirmed.

3.  The applicant's contentions that he is almost 66 years old, had led a good American life, and has never been in any type of trouble with the law enforcement were considered; however, his contentions do not support an upgrade of his BCD.

4.  The applicant claims that he was very young and made only one mistake at the age of 19.  It is noted that he was 17 years, 1 month, and 6 days of age at the time of his entry on active duty and was 20 years and 5 months of age on the date of his discharge.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their terms of service.

5.  The applicant described his problems, that there were a lot of reasons for his bad decisions at that time, and that it was a big mistake.  It is apparent that the applicant should have informed his commander of his situation prior to departing AWOL.  His commander may have provided him with some support and assistance that may have prevented him from going AWOL and assistance to his wife.  The applicant chose to depart in an AWOL status to assist his wife which was an unauthorized absence.  The applicant could have availed himself to agencies that would have provided the necessary assistance to address his problems; however, he resorted to leaving his unit in an AWOL status which compounded his problems.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080011663



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ABCMR Record of Proceedings (cont)                                         AR20080011663



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