IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100017014 


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 that his bad conduct discharge be upgraded to general.

2.  The applicant states he was ready, willing, and able to serve his country to the fullest of his ability.  He loved his country both then and now.  He had a misfortunate circumstance that occurred while serving which has followed him through the years and it is time for it to be changed.  He was afraid, young, and coerced into pleading guilty.   He needs his discharge upgraded to general.

3.  The applicant provides no 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 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.  On 9 May 1975, the applicant enlisted in the Regular Army at the age of 18 years and 1 month.

3.  On 11 November 1975, the applicant accepted nonjudicial punishment for being absent without leave for 7 days.

4.  Headquarters, U.S. Army Training Center, Engineer and Fort Leonard Wood, Missouri, General Court-Martial Order Number 27, dated 11 December 1975 shows the applicant pled guilty and was found guilty of two specifications of robbery by stealing cash of a total value of $2.60 from two different Soldiers on 26 July 1975.

5.  On 12 November 1975, the court sentenced the applicant to confinement at hard labor for 12 months, forfeiture of $250.00 pay per month for 12 months, and a dishonorable discharge.

6.  On 11 December 1975, the convening authority approved only so much of the sentence that provided for a bad conduct discharge and confinement at hard labor for 12 months.

7.  On 7 April 1976, the U.S. Army Court of Military Review issued a Court-Martial Order Correcting Certificate to cause the initial promulgating order to truly conform to the proceedings as shown in the record of trial by adding after "SENTENCE" the words "BY MILITARY JUDGE."

8.  On 28 June 1976, the Office of the Judge Advocate General, U.S. Army Judiciary, informed the Commandant, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, that the applicant's petition for a grant of review had been denied.

9.  Headquarters, U.S. Disciplinary Barracks, General Court-Martial Order Number 585, dated 6 July 1976, states that the sentence had been affirmed pursuant to Article 66.  It further states that Article 71(c) had been complied with and the sentence was to be executed.

10.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged from the Regular Army on 9 August 1976 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 11-2, as a result of court-martial.  He received a characterization of service of under other than honorable conditions.

11.  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.  The applicant contends his bad conduct discharge should be upgraded to general because he had a misfortunate circumstance that occurred while serving which has followed him through the years and it is time for it to be changed.  He was afraid, young, and coerced into pleading guilty.

2.  The trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  The applicant's contention that his misfortunate circumstance was due to his young age causing him to be afraid is not supported by any evidence of record.

4.  The applicant's argument that the passage of time should be a sufficient basis to now upgrade his discharge is without merit.  The applicant's punishment and subsequent discharge were due to his willful act of robbery.  The passage of time does not justify an upgrade of a properly-administered discharge.

5.  Furthermore, there is no evidence showing he was coerced into pleading guilty.

6.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

7.  In view of the above, the applicant's request should be denied.



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)                                         AR20100017014



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ABCMR Record of Proceedings (cont)                                         AR20100017014



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