IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100013492 


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 his discharge upgraded so he can receive health benefits from the Department of Veterans Affairs (DVA) 
* He received a full and unconditional pardon for his offense from President George W. Bush

3.  The applicant provides:

* His DD Form 214 (Report of Transfer or Discharge)
* Documentation pertaining to a full and unconditional pardon 

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 enlisted in the Regular Army on 2 October 1967 for a period of 2 years.  While in basic combat training, on 20 November 1967, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 12 November 1967 to 19 November 1967.  
 
3.  While the applicant was in advanced individual training:

* On 15 February 1968, NJP was imposed against him for failure to repair
* On 23 February 1968, NJP was imposed against him for being AWOL from 5 February 1968 to 18 February 1968

4.  On 3 October 1968, the applicant was convicted by a general court-martial of two specifications of AWOL (from 16 March 1968 to 17 June 1968 and from
3 July 1968 to 15 July 1968) and for one specification of escaping from confinement.  He was sentenced to forfeit all pay and allowances, to be confined at hard labor for 1 year, and to be discharged from the service with a bad conduct discharge.  On 14 November 1968, the convening authority approved the sentence.

5.  On 17 March 1969, the Board of Review, Office of The Judge Advocate General of the Army, affirmed the findings of guilty and the sentence.

6.  On 28 April 1969, the convening authority ordered the bad conduct discharge to be duly executed.

7.  Accordingly, on 26 May 1969, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, as a result of a court-martial, with issuance of a Bad Conduct Discharge Certificate.  He served a total of
4 months and 26 days of total active service with 454 days of time lost.

8.  In support of his claim, the applicant provided an Executive Grant of Clemency certificate which shows he was granted a full and unconditional pardon for his conviction by President George W. Bush on 15 August 2006.  He also provided a letter, dated 17 August 2006, from the U.S. Department of Justice.  This letter states, in pertinent part, President Bush granted him a full and 


unconditional pardon; a presidential pardon is a sign of forgiveness; and it does not erase or expunge the record of conviction and does not indicate innocence. 

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

10.  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.

12.  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.  Although the applicant was granted a full and unconditional pardon for his conviction by President Bush in 2006, this pardon does not erase or expunge the record of conviction and does not indicate innocence. 

2.  The ABCMR does not correct records solely for the purpose of making the applicant eligible for veterans' health benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  The 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.


4.  The applicant's brief record of service, less than five months of total active service, includes three NJPs, one general court-martial conviction, and 454 days of time lost.  His record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

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)                                         AR20100013492



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ABCMR Record of Proceedings (cont)                                         AR20100013492



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