IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090008714 


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, an upgrade of his Bad Conduct Discharge (BCD) to a general, under honorable conditions discharge (GD). 

2.  The applicant states, in effect, he is seeking veterans benefits and was unaware he could request a hardship discharge at the time.  He states he went absent without leave (AWOL) to care for his wife, who suffered a nervous breakdown, and his children.  He also states his chain of command was aware of the problem.  After he was confined, his wife divorced him, his children were put in foster care, and he suffered a Post Traumatic Stress Disorder (PTSD). 

3.  The applicant provides no documentary evidence in support of his application. 

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 military record is not available to the Board for review.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using documents provided by the applicant, which include a Record of Trial that contains DA Forms 2627 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice), Review of the Staff Judge Advocate (SJA), Special Court Martial (SPCM) Orders, and Appellate Review Documents and Orders, and a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

3.  The applicant enlisted in the Regular Army and entered active duty on
4 December 1969.  The DA Forms 2627 on file show the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:  10 March 1971, for being AWOL from on or about 7 March through on or about 8 March 1971; and 17 March 1971, for being AWOL from on or about   16 March through on or about 17 March 1971.  

4.  On 27 September 1972, an SPCM found the applicant guilty, pursuant to his pleas, of three specifications of violating Article 86 of the UCMJ by being AWOL during the following three separate periods:  28 March-2 May 1971; 8 July 1971-27 January 1972; and 25 February-4 July 1972.  The resultant sentence from the military judge was reduction to private/E-1 (PV1), BCD, forfeiture of $165.80 per month for three months, and confinement at hard labor for three months.  

5.  The SJA review completed for the convening authority on 14 December 1972 shows the applicant had two previous summary court-martial (SCM) convictions. The review also outlined matters presented in extenuation and mitigation by the applicant for review by the convening authority, which included the applicant's explanation of the family problems he had that resulted in his going AWOL.  It also showed that the applicant had written letters to the Secretary of the Army and Adjutant General of the Army requesting suspension of the BCD, which were included in the Record of Trial and subsequent to this review, on 14 December 1972, in Headquarters, Fort George G. Meade, Maryland, SPCM Order Number 101, the convening authority approved only so much of the sentence that provided for a BCD, confinement at hard labor for three months, forfeiture of $165.00 per month for three months, and reduction to PV1. 

6.  On 12 January 1973, the United States Army Court of Military Review, having found the findings of guilty and the sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that they should be approved, such findings of guilty and sentence were affirmed.

7.  On 27 March 1973, Headquarters, Fort George G. Meade, Maryland SPCM Order Number 8, the applicant's sentence having been affirmed pursuant to Article 66 of the UCMJ, directed, Article 71(c) of the UCMJ having been complied with, that the sentence be duly executed.  

8.  On 13 April 1973, the applicant was discharged under the provisions of chapter 11, Army Regulation 635-200, by reason of court-martial and received a BCD.  The DD Form 214 he was issued at the time shows he completed a total of 1 year, 5 months, and 5 days of creditable active military service and he had accrued 705 days of lost time due to being AWOL and in confinement.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated, in pertinent part, that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

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 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 applicant's contention that his BCD should be upgraded so he can apply for VA benefits was carefully considered.  However, VA benefits are not within the purview of the Board and discharges are not upgraded solely for the purpose of authorizing benefits.  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.  
2.  In this case, the evidence reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.  His record reveals no acts of valor or significant achievement and there is no evidence that he properly tried to resolve his issues through his chain of command or the unit chaplain prior to going AWOL.  His record of service is not sufficiently meritorious and the factors he raises are not sufficiently mitigating to support an upgrade of his BCD at this late date.  

3.  Further, the evidence confirms that clemency was considered by the SPCM convening authority prior to approval of the sentence and that an appellate review of the applicant's court-martial conviction and sentence was completed by the U.S. Army Court of Military Review which found the approved findings of guilty and the sentence correct in law and fact.  As a result, there is an insufficient evidentiary basis to support clemency in this case.

4.  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.

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)                                         AR20090008714



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ABCMR Record of Proceedings (cont)                                         AR20090008714


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