IN THE CASE OF:	  

		BOARD DATE:	        5 May 2009

		DOCKET NUMBER:  AR20090000027 


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 the BCD he received was unjust because it was based an incident between the applicant and another Soldier, a young sergeant, concerning a female that they both were interested in.  He believes that because the other Soldier out-ranked him, it escalated the situation. During this time he was very young and had made various mistakes which he was not proud of and not proud of now.  But this particular incident has followed him through his entire life.  He is now an old man in failing health and does not qualify for any type of Department of Veterans Affairs (VA) benefits.   

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and three character references 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 19 October 1961.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 111.00 (Light Weapons Infantryman).  

3.  The applicant's record shows the highest grade he attained during his tenure of service was private (PV2)/E-2.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  On 26 October 1962, the applicant was convicted by a Special Court-Martial (SPCM) of being absent from his unit without proper authority from 0100 hours to 0400 on 30 September 1962.  He was sentenced to confinement at hard labor for one month (suspended for three months), to a forfeiture of $25.00 pay per month for one month, and reduction to the rank/grade of Private (PV1)/E-1.

5.  On 8 February 1963, the applicant received non judicial punishment (NJP) for being absent without leave (AWOL) from 0145 to 0330 hours on 3 February 1963.  His imposed punishment was a forfeiture of $17.00 pay and 20 days of restriction.  

6.  On 22 April 1963, a General Court-Martial found the applicant guilty, contrary to his plea, of violating Article 128 of the Uniform Code of Military Justice (UCMJ) by committing an assault upon a fellow Soldier by cutting him on the left shoulder with a dangerous weapon, to wit: a knife.  The resultant sentence was a BCD, forfeiture of $40.00 per month for six months, confinement at hard labor for six months, and reduction to the lowest enlisted pay grade.

7.  On 23 May 1963, only so much of the sentence as provided for the BCD, confinement at hard labor for six months, forfeiture of $28.00 pay per month for
six months, and a reduction to the lowest enlisted pay grade was approved.  The record of trial was forwarded to The Judge Advocate General of the Army for a review by a board of review.

8.  Headquarters, First United States Army General Court-Martial Order Number 118, dated 10 July 1963, directed, in pertinent part, that the sentence to the BCD, 

confinement at hard labor for six months, forfeiture of $28.00 pay per month for
six months, and a reduction to the lowest enlisted pay grade having been affirmed be duly executed.

9.  The applicant's military personnel records contain a DD Form 214, which shows he was discharged on 10 July 1963 with a BCD as a result of court-martial.  He completed a total of 1 year, 4 months, and 26 days of military service.  This document also shows that the applicant had 117 days of time lost under Title 10, U.S. Code from 16 March 1963 to 10 July 1963.  The DD Form 214 further shows that he was separated under the provisions of Army Regulation 635-204, by reason of conviction by a military court.  

10.  The applicant provides three character reference statements in support of his application.  The statements confirm that the applicant is a well-liked, capable and responsible person, and an asset to anyone he comes in contact with.   

11.  Army Regulation 635-204, in effect at the time, provided the policies and procedures for separating members with a dishonorable discharge 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.

12.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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.

14.  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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention and the character references submitted by the applicant were carefully considered.  However, there is insufficient evidence to support granting the applicant's requested relief.

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 NJP and an SPCM conviction.

4.  Additionally, the ABCMR does not correct records solely for the purpose of establishing eligibility for VA benefits or other like programs.

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)                                         AR20090000027



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ABCMR Record of Proceedings (cont)                                         AR20090000027



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