BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100018573 


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 his bad conduct discharge (BCD) be upgraded to a general discharge (GD) under honorable conditions.

2.  The applicant states:

	a.  he was extremely immature at 17 years of age and did not have full knowledge of what he was doing when he entered the Army;

	b.  he twice was absent without leave (AWOL) and stole a car that was recovered without damage;

	c.  he does not remember having a court-martial or a lawyer, although it is possible that he had both;

	d.  being determined to right the wrongs he made, he matured, finished school, became a journeyman cabinet maker, opened his own business, and attempted to rejoin all branches of the Armed Forces, but he was denied each time;

	e.  alcohol ruined his life and the lives of those who loved him; and

	f.  he has lived with the shame of what he did for 45 years; however, the shame of having a BCD is beyond description and he hopes it can be changed.

3.  The applicant provides a copy of his résumé in support of his application.

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 military record shows he enlisted in the Regular Army on 13 November 1961.  Section 6 (Time Lost) of his DA Form 24 (Service Record) shows that while attending initial entry training he was reported AWOL from 24 November 1961-1 December 1961.  It also shows he accrued lost time during the period 2 December 1961 to 16 May 1962 due to confinement.

3.  On 5 February 1962, a general court-martial (GCM) found the applicant guilty of violating the following articles of the Uniform Code of Military Justice (UCMJ):

* Article 86 (two specifications) – for being AWOL from 24 November to 2 December 1961 and from 13-14 December 1961
* Article 121 – for wrongfully appropriating a 1961 Chevrolet valued at $2,000.00

4.  The resulting sentence was a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 18 months.

5.  GCM Order Number 43, issued by Headquarters, U.S. Army Training Center, Infantry, Fort Dix, New Jersey, dated 23 March 1962, shows the GCM convening authority approved only that portion of the sentence that provided for a BCD, forfeiture of all pay and allowances, and confinement at hard labor for 7 months.

6.  On 1 May 1962, GCM Order Number 68, issued by Headquarters, U.S. Army Training Center, Infantry, directed that Article 71c of the UCMJ having been complied with, the BCD portion of the sentence be duly executed.  On 17 May 1962, the applicant was discharged under the provisions of Army Regulation 635-204 (Personnel Separations – Dishonorable and Bad Conduct Discharge).

7.  The DD Form 214 issued to the applicant on the date of his discharge shows he completed 12 days of creditable active duty service and accrued 175 days of lost time.

8.  Army Regulation 635-204, in effect at the time, provided the policies and procedures for separating members with a dishonorable discharge or a BCD.  It stipulated that an enlisted person would be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial.

9.  Army Regulation 635-200 (Personnel Separations) governs the policies and procedures 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.

10.  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 requests that an upgrade his BCD to a GD.

2.  The evidence of record confirms the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was 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 evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.  Given the gravity of the offenses that resulted in his GCM conviction, the evidence presented is not sufficient to support clemency.

4.  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 were therefore appropriate.  As a result, clemency is not warranted in this case.

5.  The applicant's post-service conduct has been excellent and it is noted.  However, his AWOL and larceny-related misconduct diminished the character of his service during the short 12-day period of creditable service he completed.  Accordingly, the applicant's post-service accomplishments are not so meritorious to warrant the requested relief he seeks.

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)                                         AR20100018573



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018573



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1