IN THE CASE OF:	  

		BOARD DATE:	  22 January 2009

		DOCKET NUMBER:  AR20080016769 


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 reconsideration of his earlier petition for an upgrade of his Bad Conduct Discharge (BCD).  

2.  The applicant states, in effect, that had he not been inducted at the time he was, the draconian outcome of his military service would likely not have been the outcome.  He claims he served during a time when it was in vogue to operate on a zero tolerance basis and he was slammed when lesser punishment would have been more effective.  He states that it has now been more than 30 years since his discharge and surely there is room for some mercy, and he now requests a fresh look at his case.  

3.  The applicant provides a self-authored statement as new argument in support of his reconsideration request.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070004061, on 2 October 2007.  


2.  During its original review of the case, the Board determined that the applicant's general court-martial (GCM) conviction was warranted by the gravity of his offense and that his conviction and discharge were effected in accordance with the applicable laws and regulation.  It further found his discharge accurately characterized the misconduct for which he was convicted. 

3.  The applicant provides a self-authored statement in support of his request for reconsideration.  In this statement, he argues that his unfitness predated his induction, that his enlistment was improper, and that the needs of the Army lowered the entrance standard to a point that resulted in many unfit individuals being inducted.  He further argues that he was unfairly treated and was no more than an innocent bystander and that his offense was minor and should have been handled through non-judicial punishment (NJP).  He also claims some of the evidence considered by the Board during its original review was questionable.  He concludes by stating that his infraction happened 30 years ago and it is time for some leniency.

4.  The applicant's record shows he was inducted into the Army and entered active duty on 22 December 1972, and was trained in and awarded military occupational specialty (MOS) 63A (Mechanical Maintenance Helper).  The record also shows he was advanced to private/E-2 (PV2) on 22 April 1973, and that this is the highest rank he attained while serving on active duty.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

5.  The applicant's record reveals a disciplinary history that includes his acceptance of NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:  22 May 1973, for failing to go at the time prescribed to his appointed place of duty on 14 May 1973, and remaining absent until on or about 15 May 1973; and 5 March 1974, for wrongfully possessing marijuana.  

6.  On 8 March 1974, a GCM found the applicant guilty, pursuant to his pleas, of violating Article 121 and Article 80 of the UCMJ as indicated:  Article 121, by wrongfully appropriating a tape player, speakers, and radio/tape combination valued at more than $50.00 but less than $100.00 dollars; and Article 80, by wrongfully attempting to appropriate the privately owned vehicle of another individual.  The resulting sentence approved by the GCM convening authority was a forfeiture of all pay and allowances, confinement at hard labor for 
8 months, reduction to private/E-1 (PV1), and a BCD.  


7.  On 17 April 1974, the United States Army Court of Military Review, having found the findings of guilty and the sentence approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that they should be approved, affirmed the findings of guilty and the sentence in the applicant’s case. 

8.  GCM Order Number 744, issued by Headquarters, United States Army Disciplinary Barracks, Fort Leavenworth, Kansas, dated 11 July 1974, directed, Article 71(c) of the UCMJ having been complied with, that the BCD portion of the applicant's sentence be duly executed.  On 9 August 1974, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed a total of 1 year, 2 months, and 16 days of creditable active military service and that he accrued 155 days of time lost due to confinement.   

9.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated, in pertinent part, that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.  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.

2.  The applicant's overall record of service reveals no acts of valor, significant achievement, or service warranting special recognition; however, his record does confirm that in addition to the GCM conviction that resulted in his BCD, he also 
had a disciplinary history that included his acceptance of NJP on two separate occasions.  Given the gravity of the offenses that resulted in his GCM conviction and BCD, and based on his prior disciplinary history, his overall record of service is not sufficiently meritorious to support clemency in this case.  

3.  Further, the applicant fails to provide any evidence that would support a finding that clemency is warranted based on his post-service conduct.  As a result, absent any evidence of any error or injustice related to the applicant's GCM conviction and resultant BCD, it would not be appropriate to upgrade his discharge due solely to the passage of time.

4.  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 or that would support amending the original Board recommendation in this case.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20070004061, dated 2 October 2007.



      _______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)                                         AR20080016769



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016769



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1