IN THE CASE OF:	

		BOARD DATE:	9 September 2009  

		DOCKET NUMBER:  AR20090004800 


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 (BCD) be upgraded to a general discharge or an honorable discharge.

2.  The applicant states that his first offense was at Fort Leonard Wood, Missouri when he borrowed a car belonging to a civilian for joyriding.  He offers that he had no intentions of stealing the car.  However, when he returned the car the police were waiting for him.  The applicant adds that the owner of the vehicle did not press charges and no civilian charges were brought against him.  Also while at Fort Leonard Wood, his sergeant told him to go outside to cut logs in very bad weather.  The applicant offers that he told the sergeant that he must be joking and the sergeant told the lieutenant that the applicant disobeyed a direct order.  The applicant states that he did not think that the sergeant and the lieutenant were serious when the lieutenant informed him that he was going to recommend the applicant for a general court-martial. 

3.  The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 he enlisted in the Regular Army and entered active duty on 30 January 1959.  He was honorably discharged on 9 February 1961, for immediate reenlistment on 10 February 1961. 

3.  The applicant's records show he served in Korea from 4 September 1959 to 17 August 1960 and earned no individual awards or decorations during his active duty tenure.  His record documents no acts of valor or service warranting special recognition.  

4.  Special Court-Martial (SPCM) Order Number 6, dated 29 September 1961, shows the applicant was found guilty of Article 121 of the Uniform Code of Military Justice (UCMJ) for stealing a 1955 Chevrolet automobile valued at $500.00.  His punishment consisted of confinement at hard labor for 6 months, a forfeiture of $65.00 pay per month for a like period, and reduction to the rank of private (E-1).  The convening authority approved the sentence.

5.  General Court-Martial (GCM) Order Number 17, dated 5 March 1962, shows the applicant was found guilty of Article 90 of the UCMJ for disobeying a lawful order from a superior officer.  His punishment consisted of a forfeiture of all pay and allowances, confinement at hard labor for 1 year, and a BCD.  The sentence was adjudged on 31 January 1962.

6.  On 16 April 1962, the Board of Review U.S. Army approved the findings of guilty and affirmed the sentence.

7.  The applicant's DD Form 214 shows he was discharged under conditions other than honorable on 16 June 1962 and issued a BCD Certificate.  The authority and reason are listed as paragraph 1b, Army Regulation 635-204.    The applicant had completed 2 years, 7 months, and 29 days of total active service during his last enlistment with 261 days lost under Title 10, U. S. Code, section 972.

8.  Army Regulation 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and BCD’s.  This regulation states that an enlisted person will be discharged with a BCD pursuant only to an approved sentence of a court-martial imposing a BCD.
9.  Army Regulation 635-200 sets forth the basic authority 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.

10.  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.

11.  Court-martial convictions stand as adjudged or as 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.  Evidence of record shows the applicant had been previously convicted by an SPCM and sentenced to hard labor.  He was later convicted by a GCM and the findings and sentence were affirmed by the Board of Review U.S. Army.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed by the court-martial.  After a thorough review of the applicant’s record and issues the Board found no basis for granting clemency in this case. 

2.  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.

3.  In view of the foregoing, 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.

ABCMR Record of Proceedings (cont)                                         AR20090004800



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004800



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1