IN THE CASE OF:	  

		BOARD DATE:	  16 December 2008

		DOCKET NUMBER:  AR20080014193 


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.   

2.  The applicant states, in effect, he was very sick and hospitalized numerous times during his military service and is now in need of medical treatment.  He further states that he was young and his ability to serve was impaired because he was Puerto Rican.   

3.  The applicant provides his separation document (DD Form 214) and court-martial orders 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.  The applicant’s record shows that he was inducted into the Army of the United States and entered active duty on 2 March 1955, at the age of 21.  He was awarded and served in military occupational specialty (MOS) 540.00 (Duty Soldier).  

3.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  It also shows he earned no awards or decorations during his active duty tenure.  

4.  The applicant’s record contains a memorandum from Letterman Army Hospital (LAH) San Francisco, California, dated 16 April 1957, which shows the applicant was admitted to the hospital while a prisoner in the Post Stockade, 
Fort Huachuca, Arizona.  It appears he was referred for psychiatric evaluation/
treatment based on his absent without leave (AWOL) history, his confinement, and his assault of a noncommissioned officer as indicated in a unit commander’s report on the patient (LAH 318) on file.  His record is void of any other medical treatment records documenting hospitalizations or any other medical conditions for which he received treatment during his tenure on active duty.  

5.  On 21 March 1957, a General Court-Martial (GCM) found the applicant guilty, contrary to his pleas, of six specifications of violating Article 91 of the Uniform Code of Military Justice (UCMJ) by committing the following offenses:  disobeying a lawful order from a specialist second class on or about 1 March 1957; disobeying a lawful order from a master sergeant on or about 1 March 1957; being disrespectful in language toward a master sergeant on or about 
1 March 1957; disobeying the lawful order of a sergeant first class on or about 
1 March 1957; disobeying the lawful order of a sergeant on or about 1 March 1957; and assaulting a sergeant on or about 1 March 1957.  The resulting sentence imposed by the military judge was 6 months of confinement at hard labor, forfeiture of $55.00 per month for 6 months, and a BCD.  

6.  On 8 April 1957, in Headquarters, Fort Huachuca, GCM Order Number 13, the GCM Convening Authority approved the sentence imposed by the military judge and ordered the sentence be duly executed, except for the BCD portion of the sentence which was suspended until the applicant’s release from confinement or until completion of the appellate review, whichever was later.  

7.  Headquarters, Fort Huachuca, GCM Orders Number 21, dated 15 July 1957, directed, Article 71(c) of the UCMJ having been complied with, that the BCD portion of the applicant’s sentence be duly executed.  On 4 December 1957, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed a total of 1 year, 9 months, and 29 days of creditable 
active military service and that he accrued 334 days of time lost.  The DD Form 214 also shows that he was separated under the provisions of Army Regulation 635-204, by reason of conviction by military court.  

8.  Army Regulation 635-204, in effect at the time, provided the policies and procedures for separating members with a dishonorable discharge (DD) or a BCD.  It stipulated, in pertinent part, that an enlisted person would be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial. 

9.  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 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.

10.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  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.  The applicant’s contention that his BCD should be upgraded in order for him to receive medical treatment and because his youth and his Puerto Rican heritage impaired his ability to serve was carefully considered.  However, there is insufficient evidence to support this claim.

2.  Other than a psychiatric evaluation completed at LAH after his GCM conviction there are no medical records on file or provided by the applicant that document his treatment for any service connected ailments.  Further, the record shows that notwithstanding his age and Puerto Rican decent, he successfully served for more than 1 year before he committed the offenses that led to his GCM and BCD.  As a result, he clearly had the maturity and ability to perform his duties satisfactorily had he chosen to do so.  

3.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ, is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

4.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge, and the applicant's record reveals no acts of valor, significant achievement, or service warranting special recognition.  Given the gravity of the offenses that resulted in his GCM conviction and BCD, and based on his undistinguished record of service, there is an insufficient evidentiary basis to support clemency in this case. 

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 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)                                         AR20080014193



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ABCMR Record of Proceedings (cont)                                         AR20080014193



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