IN THE CASE OF:	

		BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090014000 


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 (BCD) be upgraded to a more favorable discharge. 

2.  The applicant states the character of his discharge should be changed and contends that he never received a general court-martial, discharge certificate or any separation papers.

3.  The applicant provides no additional documents with 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 records, though somewhat incomplete, show that he volunteered for induction in Atlanta, Georgia on 4 August 1970.  He was transferred to Fort Jackson, South Carolina to undergo his training.  He completed his basic training and remained at Fort Jackson to undergo advanced individual training (AIT) as a vehicle driver.

3.  On 4 November 1971, he was convicted by a summary court-martial of being absent without leave (AWOL) from 15 October to 19 October and 20 October to 1 November 1971.  He was sentenced to a forfeiture of pay and restriction.

4.  On 13 November 1970, nonjudicial punishment (NJP) was imposed against him for being AWOL from 9 November to 13 November 1970.

5.  On 19 February 1971, NJP was imposed against the applicant for being AWOL from 27 November to 18 December 1970.

6.  On 9 March 1971 and 15 March 1971, NJP was imposed against the applicant for failure to go to his place of duty.

7.  On 4 June 1971, the applicant was convicted by a special court-martial of being AWOL from 29 March to 31 March 1971 and from 31 March to 23 April 1971, of breaking arrest on 31 March 1971, escape from custody, and intentionally inflicting superficial wounds to himself on 23 April 1971 to avoid confinement.  He was sentenced to confinement at hard labor for 4 months and a forfeiture of pay.  The convening authority approved the sentence.

8.  On 19 January 1973, he was convicted by a special court-martial of being AWOL from 18 November 1971 to 3 July 1972 and 6 July to 17 October 1972, and of wrongful possession of an identification card and meal card belonging to another Soldier.  He was sentenced to a forfeiture of pay for 3 months, confinement at hard labor for 3 months and reduction to the pay grade of E-1.

9.  On 2 April 1973, while confined at the Post Stockade at Fort Bragg, North Carolina, he was convicted by a special court-martial of wrongfully communicating a threat to do harm to a superior noncommissioned officer (NCO), of being disrespectful in language towards a superior NCO, of disobeying a lawful order from a superior NCO and by striking a superior NCO with a crutch and kicking him.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of pay, and a BCD.  He was transferred to the United States Disciplinary Barracks at Fort Leavenworth, Kansas to serve his confinement.

10.  On 24 August 1973, he was transferred to Fort Benning, Georgia for assignment to a transportation company.
11.  On 7 November 1973, he was convicted by a special court-martial of being AWOL from 12 October to 25 October 1973.  He was sentenced to confinement at hard labor for 2 months and a forfeiture of pay.  He was transferred to the United States Army Retraining Brigade at Fort Riley, Kansas. 

12.  On 24 January 1974, he was restored to duty and was transferred to Fort Campbell, Kentucky.

13.  On 26 March 1974, NJP was imposed against him for being AWOL from 4 March to 7 March 1974 and for failure to go to his place of duty on 13 March 1974.

14.  On 9 April 1974, NJP was imposed against him for three specifications of failure to go to his place of duty.

15.  On 31 May 1974, NJP was imposed against him for being AWOL from 
10 May to 15 May 1974.

16.  On 5 August 1974, orders were published which indicated that his 2 April 1973 court-martial conviction had been affirmed and directed that his BCD be executed.

17.  Accordingly, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction on 26 August 1974.  He had served 1 year, 4 months, and 10 days of total active service and he had 730 days of lost time due to being AWOL and in confinement.

18.  There is no evidence in the available records to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

19.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.  Trial by 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.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses and his undistinguished record of service.

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)                                         AR20090014000



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ABCMR Record of Proceedings (cont)                                         AR20090014000



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