IN THE CASE OF:	  

		BOARD DATE:	  1 December 2009

		DOCKET NUMBER:  AR20090009392 


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 correction of his bad conduct discharge to a hardship discharge. 

2.  The applicant states that as the oldest son in the family, he had to help his family keep their home at the time.  He adds that his father was a World War II Prisoner of War but the Veterans Administration (VA) would not help him until a much later date.  

3.  The applicant did not provide any additional documentary evidence 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 he enlisted in the Regular Army for a period of 3 years on 11 August 1969.  His records do not indicate if he completed basic combat and advanced individual training and/or if he was awarded any military occupational specialty.   

3.  On 28 September 1971, the applicant pled not guilty at a General Court-Martial at Fort Devens, MA, to two specifications of being absent without leave (AWOL) during the periods on or about 8 July 1970 through on or about 20 January 1971 and on or about 8 February 1971 through on or about 9 June 1971.  The Court found him guilty of both specifications and sentenced him to a reduction to the rank/grade of private/E-1 and a bad conduct discharge.  The sentence was adjudged on 28 September 1971. 

4.  On 10 November 1971, the convening authority approved the sentence and ordered the record of trial forwarded to The Judge Advocate General of the Army for appellate review and ordered the applicant retained at his command.  Furthermore, on 15 November 1971, the applicant's request for excess leave, effective 16 November 1971, was approved.

5.  On an unknown date in November or December 1971, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

6.  Headquarters, Fort Devens, MA, General Court-Martial Order Number 306, dated 8 December 1971, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

7.  The applicant was discharged from the Army on 28 December 1971.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), as a result of court-martial, with an under other than honorable conditions character of service.  This form further shows the applicant completed a total of 1 year, 3 months, and 5 days of creditable military service.  He also had 403 days of lost time. 

8.  There is no indication in the applicant’s records that he encountered a family hardship or that he addressed such hardship with his chain of command or other support channels.  

9.  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.

10.  Army Regulation 635-200, in pertinent part, provides for separation because of dependency or hardship.  The regulation, in effect at the time, stated that enlisted members could be discharged or released from the Army because of genuine dependency or hardship.  A hardship exists when in circumstances not involving death or disability of a member of the enlisted person's family, his separation from the Service will materially affect the care or support of his family by alleviating undue and genuine hardship.  Separation from the service of enlisted personnel because of dependency or hardship was granted when all the following circumstances existed:  (1) Conditions have arisen or have been aggravated to an excessive degree since entry on active duty; (2) Conditions were not of a temporary nature; (3) Every reasonable effort was made by the enlisted person to alleviate the dependency or hardship conditions without success; and (4) Discharge or release from active military service of the enlisted person was the only readily available means of eliminating or materially alleviating the dependency or hardship conditions.  Separation from the Service of enlisted personnel because of dependency or hardship must be requested in writing by the enlisted person.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be changed to a hardship discharge.

2.  There is no evidence in the applicant’s records and the applicant did not provide substantiating evidence that shows he was undergoing a family hardship or that he reported such hardship to his chain of command or solicited help from the support channels available at his installation.  Furthermore, there is no evidence that the applicant voluntarily requested separation for hardship.

3.  The applicant was convicted by a General Court-Martial, which was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a Court-Martial conviction 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.


4.  The applicant was given a bad conduct discharge pursuant to an approved sentence of a General Court-Martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and the rights of the applicant were fully protected. 

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to an upgrade of his discharge. 

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)                                         AR20090009392



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ABCMR Record of Proceedings (cont)                                         AR20090009392



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