IN THE CASE OF:	  

		BOARD DATE:	       9 December 2008

		DOCKET NUMBER:  AR20080013423 


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 to honorable.

2.  The applicant states that he pled guilty to a crime upon the advice of his unit commander.  He contends that he was not the only person who was involved in the crime.  Although he was in the country where the crime took place, he was not involved in the crime itself.  He was advised that that he would receive an Article 15 as his form of punishment, but he received something much more harsh (sic).  He has been an upstanding citizen of his community since his discharge and has no criminal record.

3.  The applicant provided a self-authored statement; a police records check; and supporting statements 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.  On 31 August 1973, the applicant enlisted in the Regular Army for a period of 2 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

3.  On 26 April 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully communicating a threat to injure a noncommissioned officer (NCO), disobeying a lawful order from an NCO, and being disrespectful in language to an NCO.  His punishment consisted of a forfeiture of $181.00 pay per month for
2 months (suspended for 90 days) and 45 days of extra duty.

4.  On 26 August 1974, a general court-martial convicted the applicant in accordance with his plea of 4 specifications of stealing currency and a watch from 4 separate individuals by means of force and violence, and putting them in fear; 2 specifications of wrongfully communicating a threat to injure an NCO; disrespectful in language towards an NCO; 4 specifications of violation of a lawful general regulation by wrongfully possessing marijuana, heroin, amphetamines, and 1 hypodermic syringe and 1 hypodermic needle.  The resultant sentence consisted of a reduction to the grade of private (PV1)/E-1, a forfeiture of all pay and allowance, confinement at hard labor for 26 months, and to be discharged with a dishonorable discharge.  On 11 October 1974, the general court-martial convening authority approved only so much of the sentence as provided for a reduction in grade to private/E-1, confinement at hard labor for 12 months, forfeiture of all pay and allowances, and a bad conduct discharge.    
 
5.  The record of trial was forwarded to the U.S. Army Court of Military Review. On 12 February 1975, the convening authority issued General Court-Martial Orders Number 162 which stated that the court affirmed the findings of guilty and the sentence as approved by the convening authority.  The general court-martial convening authority took final action on the sentence noting the provisions of Article 71c had been complied with.  On 14 April 1975, the applicant was separated with a bad conduct discharge.  He had completed 11 months and
22 days of creditable active service and had 232 days of lost time due to military confinement. 


6.  The applicant provided a letter from fellow employees at Sam's Club indicating that he has been an associate since September 2004.  The applicant is a professional employee, he is well-liked by the other associates, he is 
dependable, friendly, and has been a great help to the management team.  The applicant provided a letter from a friend who has known him for 4 years who attests to his honesty, open-mindedness, his ability to listen, and his friendship.  The applicant is responsible and gives back to the community.

7.  The applicant provided a copy of a Police Record Report from the Newport News, Virginia Police Department showing that he has no police record.  

8.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, established the policy and procedures for the separation of enlisted personnel.  Chapter 11 provided the policy for discharge of enlisted personnel pursuant only to approved sentences of a general or special court-martial empowered to impose a dishonorable or bad conduct discharge.

9.  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.

10.  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.

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 Army Board for Correction of Military Records 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.



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 regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The applicant's official record revealed serious misconduct resulting in
an Article 15 and a general court-martial.  He had 232 days of lost time due to military confinement and was only credited with 11 months and 22 days of active Federal service.  The applicant's contentions were noted; however, he failed to provide sufficiently mitigating evidence to warrant a change in his discharge.  In view of the nature of his misconduct, the type of discharge he was issued is consistent with his offenses.  Further, his contentions relate to evidentiary and procedural matters which should have been raised and considered at the time of his court- martial and do not provide a basis for clemency.

3.  The personal references provided by the applicant were carefully considered. However, they also do not provide a basis for a change in the applicant's discharge.

4.  The Board is empowered to change the characterization of the discharge if clemency is determined to be appropriate.  Given the above, and after a thorough review of the applicant’s record and evidence he submitted, there is no cause for clemency.

5.  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 any 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.


															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)                                         AR20080013423



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ABCMR Record of Proceedings (cont)                                         AR20080013423



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