IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100012687 


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.

2.  The applicant states he would like a better life.  He adds he would like to clear-up his "mess" and be of service to his country.

3.  The applicant does not provide any additional documents in support of 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 was inducted into the Army of the United States and entered active duty on 23 July 1968.

3.  General Court-Martial Order Number 4, issued by Headquarters, U.S. Army Air Defense Center, Fort Bliss, TX, dated 22 January 1971, shows the applicant was found guilty of two specifications of Article 86, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 5 January 1969 to
1 October 1969 and from 3 November 1969 to 21 September 1970.  He was sentenced to confinement at hard labor for six months and a bad conduct discharge (BCD).  The sentence was adjudged on 14 December 1970.

4.  On 22 January 1971, the General Court-Martial Convening Authority (GCMCA) approved the sentence and forwarded the record of trial to The Judge Advocate General of the Army for review by the Court of Military Review.

5.  On 20 July 1971, the U.S. Army Court of Military Review rendered their "Opinion of the Court."  The court stated the convening authority approved the applicant's sentence without modification.  The court further stated it was appropriate to comment on one of the two errors assigned because it involved an issue recently rejected by the court in other cases without written comment.  The court stated that because the convening authority had been advised by the staff judge advocate in the applicant's pretrial of the unit commander's recommendation that the applicant not be eliminated from the service, they found no prejudice from the omission in this instance that would require the court to direct corrective measures.  The findings of guilty and the sentence were affirmed.

6.  The applicant's DD Form 214 shows he was discharged on 1 September 1971 with issuance of a Bad Conduct Discharge Certificate.  The reason and authority were listed as Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, Separation Program Number (SPN) 292, by reason of other than desertion - court-martial.  The applicant had completed 10 months and 11 days of total active service with 819 days of time lost.

7.  Army Regulation 635-200, in effect at the time, 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.  Paragraph 11-2 provided that a BCD would be given 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.

8.  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.

9.  Court-martial convictions stand as adjudged or as 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 was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

3.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100012687



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ABCMR Record of Proceedings (cont)                                         AR20100012687



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