BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100020038 


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 his prior military performance was not considered when he was convicted and sentenced.  Additionally, he was not given a fair trial; he was simply given papers to sign and he was told everything would be OK.  During his military service, he was constantly picked on by his commanding officer.  He was placed on clean-up details for a lengthy period of time.  He and another Soldier took leave but later found out their leave was unauthorized.  He reported to his captain who took extreme measures against him in that he ordered him confined to the barracks and required him to sign a log every hour on the hour.  This went on for about 2 weeks until one day the captain and a warrant officer (WO) walked into his barracks, scuffed his shoes on the floor, smiled, and told him to clean it up because the place was not clean enough.  The applicant states he flipped the captain's collar and told him these don't mean much to me and the captain accused him of striking him.  The captain told him he was going to jail and sent for the military police.  About this time he went into a rage and beat the captain up.  He was arrested by military police and subsequently pled guilty at a court-martial.  He feels he was forced to sign a plea agreement which essentially destroyed his military career.  

3.  The applicant did not provide 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.  The applicant's records show he enlisted in the Regular Army (RA) for a period of 3 years on 30 June 1972 and held military occupational specialty 44C (Welder).  He served in Germany from 19 January 1973 to 3 June 1974.  

3.  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 4 August 1972, for disobeying a lawful order to properly secure his weapon
* on 23 August 1973, for being disorderly in public, assaulting another Soldier, and resisting apprehension by a policeman

4.  While in Germany, he was honorably discharged on 28 April 1974 for the purpose of immediate reenlistment.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed 2 years and 1 month of creditable active service. 

5.  He executed a 4-year reenlistment in the RA on 29 April 1974.  However, shortly after reenlistment he departed his unit in an absent without leave (AWOL) status on 3 June 1974.  He returned to military control on 7 June 1974.

6.  On 17 July 1974, he pled guilty and he was convicted by a general court-martial of:

* one specification of being AWOL from 3 to 7 June 1974
* one specification of assaulting a superior commissioned officer
* one specification of assaulting a chief warrant officer

7.  The court sentenced him to a forfeiture of all pay and allowances, confinement at hard labor for 1 year, and a bad conduct discharge.  The convening authority approved his sentence on 22 August 1974 and except for the bad conduct discharge, ordered it executed.  Additionally, he ordered the record of trial forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

8.  On 19 November 1974, the Army and Air Force Clemency and Parole Board remitted the sentence to confinement that was in excess of 10 moths.

9.  On 21 November 1974, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

10.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 15, dated 6 January 1975, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

11.  He was discharged from the Army on 11 February 1975.  His DD Form 214 for this period of service shows he was discharged under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations) as a result of court-martial, with an under other than honorable conditions discharge. It also shows he completed 1 month and 3 days of creditable active service during this period and he had 250 days of lost time. 

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel:  

	a.  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.  

	b.  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.

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.  The evidence of record shows his trial by general 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 characterized the misconduct for which the applicant was convicted.  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.

2.  The applicant's contentions regarding mistreatment by his commanding officer and his prior service relate to evidentiary matters which could have been raised or adjudicated in the court-martial appellate process, and furnish no basis for 
recharacterization of the discharge.  

3.  After a careful review of the applicant’s entire record of service, including his first enlistment, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's 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 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)                                         AR20100020038



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ABCMR Record of Proceedings (cont)                                         AR20100020038



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