IN THE CASE OF:	   

		BOARD DATE:	        24 February 2009

		DOCKET NUMBER:  AR20080018215 


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, in effect, he was 17 years old when he went absent without leave (AWOL).  He argues that his girlfriend of 4 years wrote him a letter and he felt he could not live without her so he went AWOL during basic training.  He continues that he was young and emotionally messed up.  He concludes he is 63 years old now and the bad conduct discharge has hurt him all these years.

3.  The applicant provides a DD Form 259A (Bad Conduct Discharge Certificate), a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and an Unemployment Insurance Claimant Wage Information Sheet in support of this 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 enlisted in the Regular Army on 28 August 1962 for 3 years and did not complete initial entry training.

3.  On 14 November 1962, the applicant was convicted by a special court-martial for being AWOL during the periods 29 September 1962 through 21 October 1962 and 22 October 1962 through 30 October 1962.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $50.00 per month for 6 months.  The convening authority approved only so much of the sentence as provided for 3 months confinement and forfeiture of $50.00 for 3 months.

4.  On 13 December 1962, the unexecuted portion of the approved sentence was suspended effective 14 December 1962 until 13 May 1963.

5.  On 20 March 1963, the suspension was vacated and the unexecuted portion of the sentence to confinement and forfeiture was duly executed.

6.  On 23 April 1963, the applicant was convicted by a general court-martial for being AWOL during the period 2 January 1963 through 1 March 1963.  He was sentenced to be discharged with a bad conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for 1 year.  The convening authority approved only so much of the sentence as provided for a bad conduct discharge, 5 months of confinement, and total forfeiture of pay.

7.  Headquarters, U.S. Army Personnel Center, Fort Dix, Special Orders Number 170, dated 19 June 1963, discharged the applicant effective 21 June 
1963.

8.  On 21 June 1963, the unexecuted portion of the sentence to confinement at hard labor for 5 months was remitted.

9.  To provide greater clarity of his livelihood, the applicant provides an Unemployment Insurance Claimant Wage Information Sheet in support of his application.  

10.  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 with dishonorable and bad conduct discharges.  It stated, in pertinent part, that an enlisted person would be discharged with a bad conduct discharge pursuant only to an approved sentence of a general court-martial imposing a bad conduct discharge.
11.  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 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.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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.  The applicant's request for a discharge upgrade has been carefully reviewed.

2.  Evidence shows that although the applicant enlisted for a 3 year period, he only served 50 days of military service.  The applicant's brief period of service included two court-martial convictions and 247 days of lost time due to AWOL and confinement.  

3.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.


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)                                         AR20080018215



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ABCMR Record of Proceedings (cont)                                         AR20080018215



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