IN THE CASE OF:	

		BOARD DATE:	 23 February 2010 

		DOCKET NUMBER:  AR20090014514 


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 that his bad conduct discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states, in effect, that he desires an upgrade of his discharge in order to become eligible for medical benefits.

3.  Although the applicant indicates he provided a letter of recommendation as evidence in support of his request, no documents were enclosed 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 record shows he enlisted in the Regular Army and entered active duty on 12 February 1969.  He completed basic combat training and advanced individual training (AIT).  Upon completion of AIT the applicant was awarded military occupational specialty (MOS) 67U (CH-47 Helicopter Repairman).  The highest rank he attained while serving on active duty was private (PV2)/pay grade E-2.  However, at the time of his separation he held the rank of private (PV1)/pay grade E-1.

3.  Headquarters, U.S. Army Training Center, Infantry, and Fort Dix, Fort Dix, New Jersey, General Court-Martial Order Number 40, dated 19 March 1973, and a DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record) - Record of Court-Martial Conviction) show the applicant was tried and convicted by a general court-martial for one specification of violation of Article 86 of the Uniform Code of Military Justice by absenting himself from his unit in an absent without leave status on 1 September 1969 and remaining so absent until 12 January 1973.  As a result of his conviction, the applicant was sentenced to confinement at hard labor for a period of six months and to be discharged from the service with a bad conduct discharge.  The sentence was adjudged on 5 March 1973 and approved on 19 March 1973.  The U.S. Army Court of Military Review affirmed the findings and reduced the confinement to three months on 30 March 1973.

4.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 316, dated 6 April 1973, shows that only so much of the sentence as provided for three months confinement had been affirmed.  The appellate review according to Article 71(c) had been complied with and the bad conduct discharge was directed to be executed.  

5.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, Special Orders Number 79, dated 23 April 1973, discharged the applicant effective 23 April 1973 under other than honorable conditions by reason of conviction by general court-martial.  These orders also show the applicant was to be issued a DD Form 259A (Bad Conduct Discharge Certificate).

6.  The record shows that on 23 April 1973, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to him at the time shows the applicant completed a total of 7 months of creditable active military service during his period of enlistment.  This form also shows the applicant had 895 days of time lost during the periods 2 June 1969 to 2 June 1969 and from 1 September 1969 through 11 February 1972.  He also had 425 days lost subsequent to expiration of his normal term of service from 12 February 1972 through 11 January 1973 and from 24 January 1973 through 23 April 1973.  His service was characterized as "under conditions other than honorable" and he was issued a DD Form 259A.

7.  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.

8.  Army Regulation 635-200 (Enlisted Separations), 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 contends that his discharge should be upgraded in order to make him eligible for medical benefits.

2.  The applicant's record reveals he committed a serious crime which rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge.  This crime culminated in his trial by general court-martial which was warranted by the gravity of the offenses charged.  His 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.

3.  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.  After review of the applicant’s available record of service, it was not considered sufficiently meritorious to warrant clemency in this case.  Given the seriousness of the offenses for which he was convicted and his lost time, it is also clear that his service was not satisfactory, thus did not meet the criterion for discharge under general conditions.  Therefore, there is no basis for a grant of clemency in the form of an upgraded discharge.

5.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for benefits that are available to Soldiers who served honorably.  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 any 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)                                         AR20090014514





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ABCMR Record of Proceedings (cont)                                         AR20090014514



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