IN THE CASE OF:
BOARD DATE: 26 August 2009
DOCKET NUMBER: AR20090004300
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 Bad Conduct Discharge (BCD).
2. The applicant states "I'm just requesting a [sic] upgrade on my discharge."
3. The applicant does not provide an additional documents.
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 applicants 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 applicants 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 military records show that he enlisted in the Regular Army on 1 February 1973 and was awarded the military occupational specialty of Armor Crewman.
3. Between 7 June 1973 and 18 June 1974, the applicant accepted three nonjudicial punishments (NJP) under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 4 to 5 June 1973; for two incidents of disobeying a lawful order; and for disobeying a lawful command.
4. On 26 August 1975, the applicant was tried by a general court-martial and was found guilty of eight specifications of, with intent to defraud, falsely making the signature of another person on checks; for being AWOL from 24 July 1974 to 2 May 1975; and of six specifications of unlawfully make, draw, utter or deliver checks then knowing that he did not or would not have sufficient funds in or credit with such bank for the payment of said checks in full upon their presentment. His sentence consisted of a forfeiture of all pay and allowances, a reduction to the grade of private E-1, confinement for 4 years, and a dishonorable discharge (DD).
5. The officer having general court-martial convening authority approved so much of the sentence as provided for a BCD, confinement for 10 months, total forfeitures, and a reduction to the grade of private, E-1. The court-martial sentence, as modified, was ordered to be executed.
6. On 3 February 1976, the United States Army Court of Military Review affirmed the findings of guilty except for the AWOL charge. The United States Army Court of Military Review ordered that the applicant's sentence be reassessed because charge II had not been referred for trial. The sentence, as approved by the convening authority, was affirmed.
7. On 14 May 1976, the United States Court of Military Appeals denied the applicant's petition for review of his case.
8. On 8 March 1977, the convening authority ordered the sentence to be executed.
9. Accordingly, on 4 May 1977, the applicant was given a BCD. He had 1 year, 11 months, and 16 days of creditable active service and 828 days of time lost.
DISCUSSION AND CONCLUSIONS:
1. The applicant's record of trial shows that his rights were protected throughout the trial and subsequent appellate process, with no unaddressed error or injustice.
2. The applicant was convicted of a total of 14 specifications of various violations of the UCMJ. Such serious, repeated misconduct certainly warranted a BCD.
3. It is noted that the applicant was already afforded clemency when the court-martial convening authority mitigated his sentence from a DD and 4 years confinement to a BCD and 10 months confinement.
4. The applicant has not provided any matters of mitigation for the Board to consider.
5. As such, there is no basis for granting the applicant's request.
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.
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