IN THE CASE OF:	  

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080011693 


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 that his bad conduct discharge was due to hardship.  When he was drafted, he had a fourth grade education and could barely write his own name.  His mother was a diabetic and had to take three shots a day.  His father had lung cancer and could not work.  He had six brothers and sisters at home.  They got food stamps, but he had to work to pay the utility bills.  He had 16 brothers and sisters, but most of them were married and had their own family. He had no choice but to go absent without leave (AWOL).  He had to go to work to feed his family.  If he had to do it all over again, he would do so because he had no choice.  However, he does not want to die with this over his head.  He thinks he should have had a hardship discharge.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); his Bad Conduct Discharge Certificate; a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); six letters of support that had been provided in connection with his court-martial; five current letters of support; and his record of trial.

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.  When the commander of the Armed Forces Examining and Entrance Station processed a request for moral waiver for induction on the applicant (car theft at age 15 and a breaking and entering charge that had been dismissed), the commander noted on the request that the applicant stated he did not want to enter the service due to his mother’s nerves being bad and that he came from family of 16 brothers and sisters.  

3.  The request for moral waiver was approved, and on 24 February 1969 the applicant was inducted into the Army.  

4.  On 6 May 1970, the applicant was convicted by a special court-martial, contrary to his pleas, of being AWOL from on or about 24 March 1969 to on or about 9 September 1969 and from on or about 14 September 1969 to on or about 8 April 1970.  He was sentenced to confinement at hard labor for 4 months and to a forfeiture of $76.00 pay per month for 4 months.

5.  On 1 February 1971, the applicant was convicted by a special court-martial,  in accordance with his pleas, of being AWOL from on or about 10 August 1970  to on or about 20 October 1970 and from on or about 28 October 1970 to on about 15 November 1970.  

6.  In the sentencing phase of his trial, the applicant informed the judge that while he was AWOL he was at home with his family.  He worked for a lumber company and earned about $75.00 per week.  He used the money primarily to buy medicine for his mother and father and food for the family.  He hoped the judge would show leniency for the sake of his family.  Letters were provided showing the applicant was needed at home to help his family.

7.  The applicant was sentenced to confinement at hard labor for 4 months and to a bad conduct discharge.

8.  On 18 May 1971, the U. S. Court of Military Review affirmed the findings of guilty and the sentence.  

9.  On 14 July 1971, the applicant was discharged with a bad conduct discharge pursuant to his sentence by court-martial.  He had completed 4 months and         9 days of creditable active service and had 732 days of lost time.

10.  The applicant provides current letters of support, all testifying to his good character and integrity.

11.  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 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.

12.  The United States Attorney's Manual, Standards for Consideration of Clemency Petitions, states that, as a general rule, in clemency cases the correctness of the underlying conviction is assumed and the question of guilt or innocence is not generally at issue.  In general, a pardon is granted on the basis of the petitioner's demonstrated good conduct for a substantial period of time after conviction and service of sentence.  The following principal factors are taken into account:  (1) post-conviction conduct, character, and reputation; (2) seriousness and relative recentness of the offense; (3) acceptance of responsibility, remorse, and atonement; (4) need for relief; and (5) official recommendations and reports.

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR is not empowered to set aside a conviction, but it is empowered to change the severity of the sentence imposed in the court-martial process if clemency is determined to be appropriate.  

2.  The applicant’s misconduct cannot be condoned.  It is acknowledged that he partly raised the issue of his family’s circumstances with induction officials, but there is no evidence to show that he raised the issue again with his basic training chain of command or a chaplain’s office once he entered the Army.

3.  It is recognized, however, that the applicant’s lack of education may have been a bar to his being aware of other avenues for requesting a hardship discharge.

4.  There appears to be no basis to upgrade the applicant’s bad conduct discharge to either fully honorable or general under honorable conditions.  His actual military service was simply too short to determine that the character of his service warranted such an upgrade.  However, as a matter of clemency only in recognition of the reason he went AWOL and the lack of any other derogatory information during his military service, it would be appropriate to change his discharge from a bad conduct discharge (a punitive discharge) to a discharge under other than honorable conditions (an administrative characterization of service).

5.  The applicant also has the option of requesting a pardon.  Pardon issues are handled by the Office of the Pardon Attorney, Department of Justice.  If he desires further information, he may contact the Pardon Attorney at the following address:  Office of the Pardon Attorney, 4th Floor, 500 First Street, NW, Department of Justice, Washington, DC  20530-0001.

BOARD VOTE:

___XX_____  __XX______  ____XX____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing his bad conduct discharge to a discharge under other than honorable conditions.




      _______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)                                         AR20080011693



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ABCMR Record of Proceedings (cont)                                         AR20080011693



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