IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100016925 


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.

2.  The applicant states he has changed his life and has become a productive member of society since his discharge from the Army.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and three character reference letters.

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 records show he enlisted in the Regular Army for a period of 3 years on 22 March 1973 and held military occupational specialty (MOS) 71L (Administrative Specialist).  He also held MOS 71D (Legal Clerk) and attained the rank of specialist five/E-5.

3.  His records also show he served in Korea from August 1973 to August 1974.  He was awarded the National Defense Service Medal, Armed Forces Expeditionary Medal, and Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* on 5 December 1973, for being absent without leave from 16 October to 14 November 1973
* on 5 February 1974, for violating a lawful general regulation on six separate occasions by purchasing controlled items

5.  On 5 January 1976, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his inability to train for his job, apathetic and disinterested attitude, inability to adjust to military life, uncooperative attitude, and involvement in frequent difficulties with fellow Soldiers.  He was provided with a copy of this certificate, but he elected not to submit a statement in his own behalf. 
The bar was ultimately approved by the approving authority.

6.  On 23 January 1976, he received a letter of reprimand from his immediate commander for writing bad checks.

7.  On 4 August 1976, he was convicted by a general court-martial of one specification of assaulting two other Soldiers, two specifications of extortion, and one specification of wrongfully and unlawfully impersonating an agent of superior authority by claiming to be an agent of the Criminal Investigation Division.  The court sentenced him to a reduction to the lowest enlisted grade and a bad conduct discharge.

9.  On 27 October 1976, the convening authority approved his sentence and, except for the bad conduct discharge, ordered it executed.  He also ordered the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

10.  On 27 December 1976, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

11.  On 30 November 1977, he again accepted NJP under the provisions of Article 15 of the UCMJ for violating a general regulation.

12.  Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, GA, General Court-Martial Order Number 20, dated 28 March 1978, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed.

13.  He was discharged from the Army on 7 April 1978.  His DD Form 214 shows he was discharged under the provisions of chapter 11 of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial with a bad conduct discharge.  It further shows he completed 5 years and 16 days of creditable military service.

14.  He submitted the following documents:

	a.  A letter from a friend who has known him for nearly 50 years, dated 11 May 2010, states he has noticed the applicant's character has changed recently.  He is remorseful and more settled down.

	b.  A letter from a friend who has known him for 30 years describes him as a hard-working citizen and respected person.

	c.  A letter from an acquaintance, dated 11 May 2010, describes him as a trusted person.

15.  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.

16.  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.

17.  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.  The gravity of the offenses charged warranted his trial by a general court-martial.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct which led to his conviction.  His discharge accurately reflects his military service at that time.

2.  The character reference letters he submitted were carefully considered; however, they are not sufficiently mitigating in granting him the requested relief.  After a review of his entire record of service, it is clear his overall service did not meet the criteria for an honorable or a general discharge.  As a result, there is insufficient basis to upgrade his discharge.

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 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)                                         AR20100016925



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ABCMR Record of Proceedings (cont)                                         AR20100016925



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