IN THE CASE OF:	

		BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090015014 


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 bad conduct discharge.

2.  The applicant states he initially held military occupational specialty (MOS) 16D (Air Defense Missile Crewmember) and he departed his unit in an absent without leave (AWOL) status to earn income to support his pregnant wife. 
He was charged with AWOL and spent time in jail.  Upon his release, his MOS changed and he worked in different positions in food service and supply until his general discharge in February 1968.  He adds that when he enlisted, he was not prepared to be a father on insufficient income.  Since his discharge, he has worked in construction, but he now has several health issues.  He concludes that he was young and made a mistake and hopes the Board will upgrade his discharge.

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 22 July 1966.  He completed basic combat training at Fort Jackson, SC, and proceeded to Fort Bliss, TX, for completion of advanced individual training in MOS 16D.  However, he did not successfully complete this MOS training.

3.  On 14 February 1967, he pled guilty at a special court-martial to one specification of being AWOL from on or about 1 December 1966 to on or about 1 January 1967.  The court sentenced him to a reduction to private/E-1, confinement at hard labor for 3 months, and a forfeiture of $37.00 pay per month for 3 months.  The convening authority approved his sentence but suspended the confinement for 3 months on 23 February 1967.

4.  On 12 May 1967, he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for absenting himself from his appointed place of duty on or about 6 May 1967.  His punishment consisted of a forfeiture of $13.00 pay, 7 days of restriction, and 7 days of extra duty.

5.  On 10 August 1967, he pled guilty at a special court-martial to two specifications of being AWOL from on or about 15 May 1967 to on or about 6 July 1967 and on or about 8 July 1967 to on or about 11 July 1967.  The court sentenced him to confinement at hard labor for 6 months and a forfeiture of $33.00 pay per month for 6 months.  The convening authority approved his sentence on the same date.

6.  On 13 September 1967, the convening authority suspended the confinement portion of his sentence for a period of 5 months and on 9 December 1967 the sentence was vacated.

7.  On 4 January 1968, he pled guilty at a general court-martial to one specification of being AWOL from on or about 24 October 1967 to on or about 28 November 1967.  The court sentenced him to a bad conduct discharge and a forfeiture of all pay and allowances.

8.  On 18 January 1968, 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 and ordered him retained in the command.

9.  On 1 February 1968, the U.S. Army Board of Review affirmed the approved findings of guilty and the sentence.

10.  Headquarters, U.S. Army Training Center, Fort Jackson, SC, General Court-Martial Order Number 7, dated 13 February 1968, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

11.  He was discharged from the Army on 20 February 1968.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial with a bad conduct discharge.  It further shows he completed 9 months and 12 days of creditable military service and he had 294 days of lost time.

12.  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.

13.  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.

14.  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 contends that his bad conduct discharge should be upgraded.

2.  The gravity of the offenses charged warranted his trial by a general court-martial.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct which led to his conviction.  His discharge accurately reflects his military service at that time.

3.  After a review of his entire record of service including one instance of NJP, two courts-martial, and multiple instances of AWOL, it is clear his overall service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade his discharge to a general discharge or an honorable discharge.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  We advise him that if he desires specific medical benefits, he should contact a local/regional Department of Veterans Affairs office.  Those individuals can best advise a former service member as to the criteria to process service-connected claims.

5.  With respect to his MOS, he states that his MOS was 16D; however, his records do not reflect that he completed training or was awarded this MOS.

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)                                         AR20090015014



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ABCMR Record of Proceedings (cont)                                         AR20090015014



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