IN THE CASE OF:	

		BOARD DATE:	  31 March 2009

		DOCKET NUMBER:  AR20080018842 


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, an upgrade of his bad conduct discharge (BCD).   

2.  The applicant states, in effect, he believes he unjustly received a BCD and that he had family problems.  He claims he only left the Army after his hardship discharge request was disapproved.  He claims he has been employed ever since his discharge and still supports the military.  He states that if he had it to do over, he would have pursued another avenue to deal with his problems.  

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 enlisted in the Regular Army and entered active duty on 13 March 1969.  He successfully completed basic combat training (BCT) at Fort Dix, New Jersey, was awarded military occupational specialty (MOS) 64B (Heavy Vehicle Driver), and was assigned to Fort Meade, Maryland, on 15 May 1969.  

3.  The applicant's record shows he was advanced to private (PV2)/E-2 on 
17 November 1969, 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.  It does confirm he accrued 525 days of time lost during six separate periods of being absent without leave (AWOL) between 8 June 1969 and 16 August 1970, and three separate periods of confinement between 8 October 1969 and 19 January 1971.  

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 7 August 1969, for being AWOL from 8 June to
14 July 1969, and his conviction by a Special Court-Martial (SPCM) on 
3 November 1969, for four specifications of violating Article 86 of the UCMJ by being AWOL during the following periods:  4-6 August 1969; 19-26 August 1969; 28 August-23 September 1969; and 2-8 October 1969.  

5.  On 28 August 1970, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 17 December 1969 to on or about 17 August 1970.

6.  On 14 September 1970, the applicant requested discharge for the good of the service in lieu of trial by court-martial, and on 2 October 1970, the General Court-Martial (GCM) convening authority denied the applicant's request for discharge in lieu of trial by court-martial.  

7.  On 2 October 1970, a GCM found the applicant guilty, contrary to his plea, of violating Article 86 of the UCMJ by being AWOL from on or about 17 December 1969 to on or about 17 August 1970.  The resultant sentence from the military judge was confinement at hard labor for four months and a bad conduct discharge (BCD).

8.  In Headquarters, Fort Devens, MA GCM Order Number 128, dated
3 November 1970, the GCM convening authority approved the sentence imposed on the applicant by the military judge.  


9.  Headquarters, Fort Devens GCM Order 3, dated 7 January 1971, directed, in pertinent part, that Article 71(c) of the UCMJ having been complied with, the BCD be duly executed.  On 20 January 1971, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed a total of 4 months and 28 days of creditable active military service and that he accrued 525 days of time lost due to AWOL and confinement.  It also confirms that he was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of court-martial.  

10.  Army Regulation 635-200 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.

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 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.

12.  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 contention that his BCD was unjust has been carefully considered.  However, there is insufficient evidence to support this claim.   

2.  The evidence of record shows no error or injustice related to the applicant’s GCM conviction and/or his subsequent BCD.  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.
3.  The applicant's overall record of service reveals no acts of valor, significant achievement, or service warranting special recognition; however, it 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 and an SPCM conviction.  

4.  Furthermore, although his post-service employment history and conduct has been noteworthy, given the gravity of the offenses that resulted in his GCM conviction and BCD and based on his extensive disciplinary history, his overall record of short and undistinguished service is not sufficiently meritorious 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 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 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)                                         AR20080018842



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ABCMR Record of Proceedings (cont)                                         AR20080018842



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