BOARD DATE: 18 January 2011
DOCKET NUMBER: AR20100016264
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 an honorable discharge.
2. The applicant states due to racial discrimination and pressure from his supervisors, he was charged with threatening a lower ranking Soldier who was discharged for the good of the service. He contends he was given a court-martial and released from active duty with an other than honorable discharge.
3. The applicant did not provide any additional evidence.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. His record shows he honorably served in the Regular Army (RA) from
26 February 1968 through 14 July 1970 in military occupational specialty (MOS) 05B (Radio Operator). On 15 July 1970, he reenlisted for a period of 6 years in the rank/grade of specialist four (SP4)/E-4 in MOS 05B.
3. A copy of his DA Form 20 (Enlisted Qualification Record) shows in item 33 (Appointments and Reductions) he was promoted to the rank/grade of sergeant (SGT)/E-5 on 6 October 1972.
4. On 15 March 1976, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for striking another Soldier with his hand. His punishment was reduction to the rank/grade of corporal (CPL)/E-4, which was suspended for 6 months.
5. He was released from pre-trial confinement on 14 June 1976. A copy of General Court-Martial Order Number 51, issued by Headquarters, 101st Airborne Division (Air Assault), dated 3 August 1976, shows he entered a plea of guilty on 14 June 1976 for:
a. wrongfully possessing controlled substance paraphernalia; and
b. possessing and transferring a pound or more of marijuana to another Soldier.
6. On 14 June 1976, he was sentenced to forfeiture of $200.00 pay per month for 2 months, 45 days extra duty, reduction to private (PV1)/E-1, and a bad conduct discharge. The General Court-Martial Convening Authority approved all portions of his sentence and ordered them executed, except the bad conduct discharge. He was placed on excess leave pending completion of the appellate review. The findings of the U.S. Army Court of Military Review are not available to this Board.
7. A copy General Court-Martial Order Number 19, issued by Headquarters, 101st Airborne Division (Air Assault), dated 6 May 1977, shows after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge be duly executed.
8. Accordingly, he was discharged on 16 May 1977 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 11, by reason of court-martial, and issued a Bad Conduct Discharge Certificate with a character of service of under other than honorable conditions. He completed 9 years, 2 months, and 22 days of total active service with 324 days of time lost due to excess leave.
9. His record shows he applied to the Army Discharge Review Board (ADRB) for an upgrade of his BCD and issuance of a DD Form 256A (Honorable Discharge Certificate) for his first period of service. The ADRB determined his BCD to be fair and equitable and denied that portion of his request. However, the portion pertaining to his first period of service was granted and as a result he was issued a DD Form 256A.
10. Army Regulation 635-200 governs the separation of enlisted Soldiers on active duty. Paragraph 11-2 states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.
11. Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.
12. 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 Soldiers separation specifically allows such characterization.
13. 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. 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 he was convicted. The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.
2. His contentions regarding his discharge have been noted. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses and his overall undistinguished record of service. Therefore, he is not entitled to a general or an honorable discharge.
3. 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) AR20100016264
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