IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100013090 


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 (BCD).

2.  The applicant states:

* During his time on active duty he had a brain tumor that severely played a part in his behavior in the Army National Guard
* His brain tumor had not been diagnosed prior to his discharge
* He also received a general under honorable conditions discharge

3.  The applicant provides no additional documentation.

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.  He enlisted in the Indiana Army National Guard (INARNG) for 6 years on 20 September 1969.  He completed training as a light weapons infantryman.  He was ordered to active duty effective 21 November 1972.

3.  Special Court-Martial Order Number 84, issued by Headquarters, 8th Infantry Division, dated 9 August 1974 and adjudged on 24 May 1974, convicted the applicant of unlawfully receiving property he knew had been stolen from another Soldier.  The property included the following equipment, which had a total value of $974.00:

* one Pioneer receiver valued at $553.00
* one Akai tape deck valued at $203.00
* two Bose speakers valued at $218.00

4.  He was sentenced to:

* discharge from the service with a BCD
* confinement at hard labor for 5 months
* reduction to pay grade E-1
* forfeiture of $217.00 pay per month for 5 months

5.  On 9 August 1974, the convening authority approved the sentence and only so much of the findings of guilty as provided for concealing stolen equipment with a total value of $974.00 which consisted of:

* one Pioneer receiver valued at $553.00
* one Akai tape deck valued at $203.00
* two Bose speakers valued at $218.00

6.  On 20 September 1974, Special Court-Martial Order Number 599, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, having served the period of confinement adjudged on 24 May 1974, restored the applicant to duty pending completion of appellate review.  That portion of the sentence adjudging partial forfeitures was not applied to pay becoming due during the period commencing on the date of this order, and terminated on the date of the order directing execution of the sentence.

7.  On 14 August 1975, Special Court-Martial Order Number 425, issued by the same headquarters, the findings of guilty and the sentence having been found to be correct in law and fact, and having determined on the basis of the entire record that both should be approved, affirmed the findings of guilty and ordered the sentence executed.

8.  On 28 October 1975, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, as a result of a duly reviewed and affirmed special court-martial conviction, with issuance of a Bad Conduct Discharge Certificate.  He had completed 2 years, 7 months, and 9 days of net active service this period with 119 days of time lost due to confinement.

9.  There is no evidence of record and the applicant did not provide any evidence that shows he was suffering from a brain tumor while he was in the Army.

10.  The available records do not show that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, established the policy and procedures for separating members with a dishonorable or BCD.  The regulation provided that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  It further provided that the appellate review must be completed and the affirmed sentence ordered duly executed.

13.  Paragraph 3-7b of Army Regulation 635-200 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 an upgrade of his discharge has been considered based on the documents contained in his official record.  However, there is no basis for upgrading the type of discharge that he received.  

2.  His records show he was discharged with a BCD as a result of a duly reviewed and affirmed special court-martial conviction and he has provided no evidence to show the type of discharge he received was erroneous or unjust.

3.  The applicant's contentions were considered; however, there is no evidence in the available records nor has the applicant submitted any evidence showing he was suffering from a brain tumor while he was in the Army.  

4.  Based on his overall record of service, he did not serve honorably or under honorable conditions.  The BCD he received appropriately characterizes his service and is not severe considering the nature of his offenses.

5.  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.

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)                                         AR20100013090



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ABCMR Record of Proceedings (cont)                                         AR20100013090



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