IN THE CASE OF:	

		BOARD DATE:	       10 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007185 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that he was not provided adequate representation at the time of his discharge and that he had hearing problems that should have been addressed during his discharge proceedings.  

3.  The applicant provides a self-authored statement and a statement from his spouse 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 (RA) on
4 December 1959 for a period of 3 years.  Upon completion of all required training he was awarded military occupational specialty (MOS) 910 (medical corpsman).  The highest rank/pay grade he attained while serving on active duty was Private (PV2)/E2.

3.  In August 1960, the applicant was arraigned and placed on trial at Fort Bliss, TX.  General Court-Martial (GCM) Order Number 45, published by Headquarters, U.S. Army Air Defense Center, Fort Bliss on 14 September 1960, shows the applicant was charged with violation of the Uniform Code of Military Justice (UCMJ), Article 121, larceny of personal property (stealing 5 radios), during the time frame from 8 April 1960 to 7 May 1960.  The applicant was found guilty of all charges pursuant to his plea of guilty and he was sentenced to be discharged from the service with a bad conduct discharge (BCD), to forfeit all pay and allowances, to be reduced to the grade of Private (PV1)/E-1 and to be confined at hard labor for three months.  The sentence was adjudged on 25 August 1960. 

4.  On 14 September 1960, the sentence was approved and forwarded to The Judge Advocate General of the Army for review by a board of review.

5.  On 28 October 1960, GCM Order Number 54 was published affirming the charges and sentence, and the sentence was duly executed.  The unexecuted portion of the sentence to confinement at hard labor was remitted with an effective date of 9 November 1960.

6.  On 7 November 1960, a certificate was produced from the chief of the physical exam station stating that the applicant was examined on 2 November 1960 and he was found to be free from any mental or physical defects which would warrant a discharge through medical channels.

7.  The applicant's military personnel records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which shows he was discharged on 9 November 1960 with a BCD as a result of court-martial.  He completed a total of 7 months and 13 days of creditable military service.  The DD Form 214 further shows that he was separated under the provisions of Army Regulation 635-204 (Personnel Separations Dishonorable and Bad Conduct Discharge), by reason of conviction by a military court.  

8.  The applicant provides a self-authored statement and a statement written by his spouse in support of his application.  The statements contained information concerning the applicant’s inability to hear clearly and states that this issue should have been discussed during his discharge proceedings.   

9.  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.

10.  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.

11.  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.

12.  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 two statements 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 or service warranting special recognition.  The applicant’s records indicate he was medically evaluated and determined to be free of mental or physical defects that would warrant a medical discharge.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

4.  Additionally, the ABCMR does not correct records solely for the purpose of establishing eligibility for Department of Veterans Affairs 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.



      _________XXX_____________
               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)                                         AR20090007185



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090007185


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1