BOARD DATE:	  25 September 2009

		DOCKET NUMBER:  AR20090008000 


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 be upgraded to a general discharge.

2.  The applicant states, in effect, that after 38 years, he would like to have his bad conduct discharge changed to a general discharge. 

3.  In support of his request, the applicant submits a copy of his DD Form 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 that he enlisted in the Regular Army on 15 September 1969.  He completed his basic combat and advanced individual training at Fort Jackson, South Carolina, and he was awarded military occupational specialty 36K (Field Wireman).

3.  The applicant was assigned duty in Germany and served there from 24 February 1970 until he was returned to the United States for the purpose of being discharged.

4.  The applicant's records show the highest rank and pay grade he held on active duty was private first class, E-3.  He achieved this rank and pay grade on 1 April 1970.  The record contains no documented acts of valor or service warranting special recognition.

5.  On 9 May 1970, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on 9 May 1970.  The imposed punishment was a reduction to private, E-2 (suspended for a period of 
30 days), restriction to the company area for 14 days, and to perform extra duty for 14 days.  The applicant did not appeal the punishment.

6.  On 8 January 1971, the applicant was tried and found guilty by a special court-martial of stealing the property of another Soldier valued at $247.00 on 1 August 1970 and of stealing the property of a second Soldier valued at $599.00 on 30 August 1970.  The applicant was sentenced to be discharged from the service with a bad conduct discharge, to be confined at hard labor for 5 months, and to forfeit of $50.00 pay per month for 5 months.  The sentence was approved on 2 June 1971 and the record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  The applicant was ordered to be confined in the U.S. Forces Confinement Facility, Mannheim, or elsewhere as competent authority directed pending completion of the appellate review.

7.  On 18 July 1971, the applicant received an Article 15 for wrongfully appropriating a one and a quarter ton vehicle, the property of the United States Government, on 17 July 1971.  The imposed punishment was a forfeiture of $20.00 and extra duty for 14 days.  The applicant did not appeal the punishment.

8.  On 31 August 1971, the applicant received an Article 15 for willfully disobeying a lawful order from his superior noncommissioned officer on 
26 August 1971.  The imposed punishment was a forfeiture of $25.00 and extra duty for 14 days.  The applicant did not appeal the punishment.

9.  On 29 March 1972, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence as approved by proper authority.

10.  On 30 May 1972, Special Court-Martial Orders Number 31 were published by Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, announcing the sentence had been affirmed pursuant to Article 66 and the provisions of Article 71c having been complied with, the sentence would be duly executed.  The order noted that portion of the sentence pertaining to confinement had been served.

11.  On 6 June 1973, the applicant was discharged from the Army with a bad conduct discharge in the rank and pay grade of private, E-1, pursuant to the sentence of a special court-martial.  He had completed 3 years, 3 months, and 23 days active Federal service with 150 days of lost time.

12.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and on 18 July 1974 he was notified that after careful consideration of his military records and all other available evidence, the ADRB determined that he had been properly discharged.  Accordingly, his request was denied.

13.  Army Regulation 635-200 (Enlisted Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  This regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence had been duly ordered executed.

14.  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 separation specifically allows such characterization.

15.  Title 10, U.S. Code, section 1552, as amended, does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of 
service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.  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 sufficient evidence that would satisfy this requirement.

2.  The evidence of record shows the applicant received a special court-martial and was convicted of stealing the property of two other Soldiers.  The applicant was sentenced, in addition to a forfeiture of pay and confinement with hard labor, to be separated with a bad conduct discharge.

3.  The applicant's conduct left much to be desired of a Soldier in the United States Army.  In addition to his court martial conviction, the applicant was punished three separate times through administration of nonjudicial punishment - once before his court martial conviction and twice while he was waiting for a review of the record of his trial.

4.  The applicant's sentence was reviewed by the United States Army Court of Military Review.  Having been finally affirmed and Article 71(c) having been complied with, the bad conduct discharge was ordered executed and the applicant was so discharged.

5.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of his bad conduct discharge to a general under honorable conditions discharge.

6.  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)                                         AR20090008000



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ABCMR Record of Proceedings (cont)                                         AR20090008000



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