IN THE CASE OF:	  

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20090000339 


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 an upgrade of his discharge.

2.  The applicant states that he was not afforded proper legal counsel, was denied due process of law, and was not allowed to seek outside legal help.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 records show that he enlisted in the Regular Army for a period of 3 years on 1 August 1972.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant’s record reveals he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

	a.  on 8 February 1973, for failing to go at the time prescribed to his appointed place of duty (guard duty) on or about 5 February 1973.  His punishment consisted of a forfeiture of $25.00 pay (suspended for 30 days) and 7 days of extra duty; and 

	b.  on 5 September 1973, for failing to go at the time prescribed to his appointed place of duty (guard mount and guard) in August 1973.  His punishment consisted of a reduction to private (PV1)/E-1, a forfeiture of $144.00 pay per month for 2 months (1 month suspended until 10 October 1973), and 45 days of extra duty.

4.  On 7 December 1973, the applicant pled guilty at a special court-martial to one specification of stealing from another person German currency of a value of $8.00 by means of force and violence and putting her in fear on or about 9 August 1973 and one specification of stealing from another person German currency of a value of $23.00 by means of force and fear and putting him in fear on or about 9 August 1973.  The Court sentenced him to a reduction to PV1/E-1, a forfeiture of $215.00 per month for 6 months, confinement at hard labor for 5 months, and a bad conduct discharge.  The sentence was adjudged on 7 December 1973.

5.  On 10 January 1974, the convening authority approved the sentence, but suspended the adjudged confinement at hard labor in excess of 120 days for a period of 6 months with a provision for automatic remission.

6.  On 15 March 1974, having served his period of confinement, the applicant was ordered restored to duty pending completion of the appellate review.

7.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, Special Court-Martial Order Number 475, dated 25 July 1974, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

9.  The applicant was discharged from the Army on 16 August 1974.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows that he was discharged under the provisions of chapter 11 of Army Regulation 
635-200 (Personnel Separations) with a Bad Conduct Discharge Certificate and a character of service of under other than honorable conditions.  This form further confirms the applicant completed 1 year, 9 months, and 8 days of creditable military service and had 98 days of lost time.

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 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.

11.  Army Regulation 635-200, 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.

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 discharge should be upgraded because he was not afforded proper legal counsel, was denied due process of law, and was not allowed to seek outside legal help, was carefully considered; however, it was found to be without merit.

2.  The evidence of record shows that the applicant had a history of misconduct and a pattern of indiscipline, including two instances of Article 15s and one instance of a special court-martial.  His trial by special court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a court-martial conviction 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.  After a review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  His contentions could have been adjudicated in the court-martial appellate process.  As a result, there is insufficient basis to upgrade the applicant's discharge to either an honorable or a general 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)                                         AR20090000339



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ABCMR Record of Proceedings (cont)                                         AR20090000339



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