BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100013422 


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 a general discharge.

2.  The applicant states:

* At the time of his court-martial his commanding officers were willing to restore his service with a reduction in pay grade
* He was the sole support for his parents and if he were to be reduced in pay grade, he would not have been able to provide for them adequately
* He felt he needed to accept the discharge and be able to provide for his parents financially
* His service time prior to this incident had been excellent with no major infractions
* He has lived a productive life since his discharge and he did provide for his parents the best he could
* He is presently in need of financial assistance but he cannot file for non-service-connected pension until his discharge is upgraded  

3.  The applicant provides:

* Five character reference letters
* Clemency and Parole documentation
* Service 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.  Having prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 16 August 1958 for a period of 3 years.  He trained as an armor crewman.  On 16 June 1961, he was honorably discharged for immediate reenlistment.  He reenlisted on 17 June 1961 for a period of 6 years.  He was promoted to sergeant on 28 October 1962.

3.  On 18 March 1964, nonjudicial punishment (NJP) was imposed against the applicant for urinating on a street in Germany.  His punishment consisted of an oral reprimand and a forfeiture of pay. 

4.  On 9 February 1966, the applicant was convicted by a general court-martial of disposing of by trading military property (a .45 pistol) and disobeying a lawful order.  He was sentenced to a bad conduct discharge, forfeiture of $65.00 pay per month for 6 months, and confinement at hard labor for 6 months.  On
26 February 1966, the convening authority approved the sentence.

5.  On 4 April 1966, the U.S. Army Judiciary, Office of The Judge Advocate General of the Army, affirmed the findings of guilty and the sentence.

6.  On 23 May 1966, the convening authority ordered the applicant’s bad conduct discharge executed. 

7.  Accordingly, the applicant was discharged with a bad conduct discharge on 
6 June 1966 under the provisions of Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharge) for conviction by a general court-martial.  He had served a total of 7 years, 11 months, and 23 days of total active service with 118 days of time lost.

8.  In support of his claim, the applicant provided five character reference letters from friends.  They attest the applicant is enthusiastic, dependable, caring, patriotic, respectful, hard working, Christian, honest, and loyal.

9.  Army Regulation 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges.  Paragraph 1b of this regulation states that an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.

10.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

2.  A discharge is not upgraded for the purpose of obtaining financial assistance.
 
3.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

4.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.


5.  The applicant's contentions were carefully considered.  However, his record of service during his last enlistment included, in addition to the general court-martial that resulted in his bad conduct discharge, one NJP and 118 days of time lost.  He was a sergeant discharged with a bad conduct discharge for disposing of by trading military property (a .45 pistol) and disobeying a lawful order.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.  

6.  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)                                         AR20100013422



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013422



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1