BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090013246 


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

2.  The applicant states that he received several Article 15's for being late to formation or breaking restrictions to the barracks.  He has always felt that he was a victim of racial prejudice in an unpopular war.  He had family issues with dying family members and could not get home for funerals.  He was young and immature on an exotic island.  The mentality at the time was to do paperwork on the Soldier, charge him, and be done with him.  There was so much negativity in that era in general.  He would also like to point out that he served his entire enlistment, never had any alcohol or drug problems, and performed his duties without any incidents.  Many other Soldiers had those issues and were never even called out, much less punished.  He has been successful in all areas of his life before and since the military.  This is something that has haunted him and caused him shame and embarrassment.  He would like the Board to restore his dignity and pride in his service and allow him to hold his head high again with his fellow veterans.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 4 February 1976, 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 was born on 23 October 1953 and enlisted in the Regular Army for a period of 3 years at 18 years and 7 months of age on 2 May 1972.  He completed basic combat and advanced individual training and was awarded military occupational specialty 45B (Small Arms Repairman).  The highest rank/grade he attained during his military service was private/E-2.

3.  The applicant's records show he served in Hawaii from on or about 28 October 1972 to on or about 22 August 1975.  His records also show he was awarded the National Defense Service Medal.

4.  On 3 April 1973, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period from on or about 25 March 1973 through on or about 29 March 1973.  His punishment consisted of a forfeiture of $40.00 pay and 15 days of restriction.

5.  On 23 May 1973, the applicant pled not guilty at a summary court-martial to two specifications of disobeying a lawful order to sign in at the orderly room every hour on the hour on or about 14 and 16 April 1973.  The court found him guilty and sentenced him to a forfeiture of $50.00 pay and 15 days of extra duty.  The sentence was adjudged on 23 May 1973 and was approved on 4 June 1973.

6.  On 15 October 1973, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully appropriating a government vehicle (utility truck) of a value of $1,984.94 on or about 10 September 1973 and wrongfully and falsely altering, with intent to deceive, the disposition of a sick call slip from duty to quarters on or about 26 September 1973.  His punishment consisted of a reduction to private (PVT)/E-1 (suspended for 60 days), a forfeiture of $50.00 pay, and 30 days of restriction.  Additionally, on 26 November 1973, the suspension of the punishment of reduction to PVT/E-1 was vacated and the unexecuted portion of the punishment was ordered executed.

7.  On 21 December 1973, the applicant pled not guilty at a summary court-martial to one specification of failing to go at the time prescribed to his appointed place of duty on or about 24 November 1973.  The court found him guilty and sentenced him to a forfeiture of $100.00 pay.  The sentence was adjudged on 21 December 1973 and was approved on 28 December 1973.

8.  On 18 September 1974, the applicant was convicted by a special court-martial for failing to go at the time prescribed to his appointed place of duty.  The court sentenced him to a bad conduct discharge.  The sentence was adjudged on 18 September 1974.  Furthermore, on 10 December 1974, the convening authority approved the sentence and, except for that part of the sentence extending to a bad conduct discharge, he ordered it executed.  He also ordered the record of trial forwarded to The Judge Advocate General of the Army for appellate review.  A copy of the court-martial order is not available for review with this case.

9.  On 4 November 1974, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty (charge of quarters runner) on or about 6 October 1974.  His punishment consisted of 30 days of restriction and 30 days of extra duty.

10.  On 4 December 1974, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for being derelict in the performance of his duties in that he negligently failed to secure his M-16 rifle on or about 3 December 1974 and absenting himself from his assigned place of duty on 3 December 1974.  His punishment consisted of a forfeiture of $80.00 pay, 7 days of restriction, and 7 days of extra duty.

11.  On 11 December 1974, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the prescribed time to his appointed place of duty on three different occasions on or about 16, 17, and 18 November 1974 and breaking restriction on or about 18 November 1974.  His punishment consisted of a forfeiture of $150.00 pay.

12.  On 6 June 1975, the applicant departed his unit in an AWOL status.  He surrendered to his unit on 11 June 1975 and was subsequently placed in pre-trial confinement.  He remained confined until 20 June 1975.

13.  On 15 July 1975, the applicant pled not guilty at a special court-martial to one specification of being AWOL during the period from on or about 6 June 1975 through on or about 11 June 1975.  The court found him guilty and sentenced him to confinement at hard labor for 36 days.  The sentence was adjudged on 15 July 1975 and was approved on 24 July 1975.
14.  On 26 August 1975, the applicant was placed on excess leave pending completion of the appellate review of his case.

15.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

16.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, Special Court-Martial Order Number 2, dated 9 January 1976, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

17.  The applicant was discharged on 4 February 1976.  The DD Form 214 he was issued shows he was discharged in accordance with chapter 11 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 3 years, 7 months, and 12 days of creditable military service and had 48 days of lost time (8 days prior to his normal expiration term of service (ETS) date and 44 days subsequent to his ETS).

18.  There is no indication in the applicant's records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

19.  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.

20.  Army Regulation 635-200, 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

21.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests that his discharge should be upgraded to honorable.

2.  The evidence of record shows that the applicant was 18 years of age at the time he enlisted and was nearly 20 years of age at the time he committed his offense that led to his discharge.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Furthermore, there is no evidence in the applicant's records and the applicant did not provide substantiating evidence that shows his extensive history of misconduct was the result of his age.

3.  Contrary to the applicant's contention that he received several Article 15's for being late to formation or breaking restrictions to the barracks and his contention that he served his entire enlistment and performed his duties without any incidents, the evidence of record shows the applicant had a history of misconduct, including five instances of NJP and four instances of courts-martial for various infractions, including AWOL, misappropriating a government truck, disobeying orders, as well as missing formation.

4.  There is no evidence in the applicant's records that he encountered racial prejudice or that he addressed such issues with his chain of command or other support channels.  Additionally, his record does not contain any requests for leave for the purpose of attending family members' funerals or denial of leave by any members of his chain of command.

5.  The applicant's trial by special court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

6.  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.  He did not submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20090013246



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ABCMR Record of Proceedings (cont)                                         AR20090013246



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