BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090019144 


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 upgrade of his bad conduct discharge to honorable or general.

2.  The applicant states the following:

     a.  While in Germany he took an Army truck without permission and had an accident.  

     b.  He admits what he did was wrong.

     c.  He was young, dumb, crazy, and homesick.  

     d.  He wants his discharge upgraded to clear his record and conscience.

     e.  He has not been in any trouble since then and has been working hard for 40 years, including a job with the Corps of Engineers.

3.  The applicant provides a copy of a Selective Service System Notice of Classification.

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 military records are not available to the ABCMR for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the ABCMR to conduct a fair and impartial review of this case.

3.  The applicant was inducted into the Army of the United States on 6 November 1952.  

4.  Headquarters, VII Corps, General Court-Martial Order Number 56, dated 
16 April 1954, shows the following:

     a.  The applicant pled guilty to wrongful appropriation of a motor vehicle and, through neglect, damaging the vehicle by colliding with a tree and a house.  

     b.  He was sentenced to be confined at hard labor for 2 months and to be discharged from the service with a bad conduct discharge.

5.  The applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States) shows he was discharged with a bad conduct character of separation on 15 September 1954.  Item 8 (Reason and Authority for Separation) shows he was separated by sentence of court-martial under the provisions of Army Regulation 615-364 (Discharge:  Dishonorable and Bad Conduct).  He completed a total of 1 year, 5 months, and 2 days of creditable active military service with 158 days of time lost.

6.  Army Regulation 615-364, in effect at the time, provided for the discharge of enlisted personnel pursuant to an approved sentence of a special or general court-martial imposing a bad conduct discharge.

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 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 (Personnel Separations - Enlisted Personnel), 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

9.  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 request for upgrade of his discharge was carefully considered and not supported by the evidence in this case.

2.  The applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The offenses of which he was convicted are serious and his punishment was not excessive.  

3.  Based on his record of indiscipline, which includes conviction by general court-martial, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable or 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20090019144



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