IN THE CASE OF:	  

		BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100000255 


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.

2.  The applicant defers to two letters submitted with his application.

3.  The applicant provides:

* a letter, dated 10 December 2009, from his wife
* an unsigned letter, dated 20 October 2009, from his doctor
* two copies of his DD Form 214 (Report of Separation from Active Duty) 
* 10 pages from his military personnel records

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 personnel records show he enlisted in the Regular Army on 4 January 1972 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 63F (Recovery Specialist).

3.  On 21 December 1972, the applicant was assigned to the 699th Maintenance Company in Germany.

4.  On 23 August 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his appointed place of duty.

5.  On 6 February 1974, before a general court-martial the applicant pled guilty and was found guilty of:

* stealing U.S. currency of a value of about $20.00 by a means of force and violence and putting a specialist in fear against his will 
* stealing U.S. currency of a value of about $40.00 from a private by a means of force and violence and putting him in fear against his will
* stealing U.S. currency of a value of about $2.00 from a specialist by a means of force and violence and putting him in fear against his will

6.  The applicant was sentenced to be reduced to the grade of E1, to be confined for 1 year, to forfeit $250 pay for 12 months and to be discharged from the service with a bad conduct discharge.

7.  On 16 March 1974, the convening authority approved the findings and the sentence.

8.  On 5 September 1974, the United States Army Court of Military Review affirmed the findings and the sentence of the general court-martial.

9.  On 15 October 1974, the applicant's sentence to a bad conduct discharge was ordered executed.

10.  On 15 November 1974, the applicant was issued a bad conduct discharge.  He had completed 1 year, 10 months, and 21 days of active service.  He had 
351 days of time lost due to being in confinement.




11.  In a letter, dated 10 December 2009, the applicant's wife requests a mercy pardon for the applicant.  She states he has always regretted that he messed up in the service.  She states she feels his lack of a normal childhood may have contributed to his behavior in his military years.  She states he is now sick and has been diagnosed with two cancers.  She states he turned over his life to Christ many years ago and he is now a deacon and a Sunday school teacher.

12.  In an unsigned letter, dated 20 October 2009, Dr. Stair, MD, states the applicant is his patient at the Kirklin Clinic at the University of Alabama, at Birmingham, AL.  The doctor states the applicant has multiple medical problems including having two previous strokes, bladder cancer diagnosed in January 2007, and gastric adenocarcinoma (malignant tumor originating in glandular epithelium) diagnosed in November 2007.  The doctor states he does have significant debility (physical weakness) because of these illnesses and is currently relatively stable from a medical standpoint.

13.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed.

14.  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.

15.  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 contends his bad conduct discharge should be upgraded.

2.  The applicant's wife's statement concerning his post-service achievements and conduct are noted.  However, good post-service conduct alone is not normally sufficient for upgrading a properly-issued discharge.  The letter from his doctor describing his health concerns was also noted.  However, ill health over 30 years after his discharge does not mitigate the serious nature of the charges for which he was convicted which included stealing from other Soldiers by a means of force and violence.

3.  The evidence shows the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

5.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or achievement that would warrant special recognition.  The applicant's misconduct clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His service was unsatisfactory.  

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's bad conduct 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)                                         AR20100000255



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)