IN THE CASE OF:	  

		BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100020899 


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.

2.  The applicant states, in effect, he believes he was subjected to discrimination, because he received no care for his physical illnesses.  He became stressed out and he could not perform to the best of his ability.  He committed some irrational acts (insubordination and being absent without leave (AWOL)).  However, he was stressed out from a physical illness and performance pressure when he signed his discharge after being court-martialed.

3.  He provides a:

   a.  Completed DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States); and 

   b.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 13 January 1967, the applicant enlisted in the Regular Army in pay grade E-1 for 3 years.  He completed the required training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  He accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for the following reasons on:

* 16 January 1968, for failing to go to his appointed place of duty on 14 January 1968
* 29 January 1968, for being AWOL from 23 to 25 January 1968
* 30 January 1968, for failing to go to his appointed place of duty on 28 January 1968

4.  On 28 March 1968, he was convicted pursuant to his pleas by a special court-martial of two specifications of failing to go to his appointed place of duty on 1 and 4 March 1968 and one specification of being AWOL from 16 to 21 March 1968.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of $68.00 pay for 3 months, and a reduction to pay grade E-1.  The sentence was approved on 4 May 1968 and ordered duly executed.

5.  On 28 May 1968, the unexecuted portion of the approved sentence to confinement at hard labor for 6 months was suspended for 4 months.  On 26 September 1968, the suspended portion was vacated and ordered duly executed.

6.  On 11 October 1968, he was convicted pursuant to his pleas by a special court-martial of two specifications of being AWOL from 2 July to 20 August 1968 and from 21 to 26 August 1968.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of $46.00 pay for 6 months, and a reduction to pay grade E-1.  The sentence was approved on 21 October 1968 and ordered duly executed.



7.  On 10 March 1969, he was convicted pursuant to his pleas by a special court-martial of two specifications of being AWOL from 4 to 10 January 1969 and from 20 January to 14 February 1969.  He was sentenced to confinement at hard labor for 6 months.  The sentence was approved on 17 March 1969 and ordered duly executed.

8.  On 16 April 1969, so much of the 10 March 1969 sentence as was in excess of confinement at hard labor for 4 months was set aside.

9.  He accepted nonjudicial punishment under Article 15 of the UCMJ for the following reasons on:

* 9 July 1969 for being AWOL from 23 to 30 June 1969
* 6 September 1969 for being AWOL from 3 to 5 September 1969
* 30 October 1969 for being AWOL from 22 to 24 October 1969

10.  A Report of Medical Examination, dated 24 February 1970, shows no defects or diagnoses which would have prevented him from completing his term of enlistment.  He was found qualified for separation.

11.  On 9 July 1970, he was convicted pursuant to his pleas by a general court-martial of one specification of stealing the property of another Soldier on 19 February 1970.  He was sentenced to a forfeiture of $30.00 pay per month for 6 months, a reduction to pay grade E-1, and to be discharged from the service with a BCD.  The sentence was approved on 8 October 1970 and ordered duly executed.

12.  He was reported AWOL on 2 October 1970 and dropped from the rolls on the same day.  He was returned to military duty on 14 January 1971.

13.  On 3 February 1971, he was convicted pursuant to his pleas by a special court-martial of one specification of being AWOL from 2 October 1970 to 13 January 1971.  He was sentenced to confinement at hard labor for 45 days.  The sentence was approved on 25 February 1971 and ordered duly executed.

14.  On 18 March 1971, the U.S. Army Court of Military Review approved and affirmed his sentence and ordered the sentence be duly executed.  On 15 April 1971, the applicant was provided a copy of the decision.

15.  There is no evidence that he petitioned the U.S. Court of Military Appeals for a review of his case.

16.  On 15 April 1971, Headquarters, U.S. Army Infantry Center, Fort Benning, GA, approved and affirmed his sentence and ordered the sentence to be duly executed.  

17.  On 28 April 1971, he was discharged under the provisions of chapter 2, Army Regulation 635-200 (Personnel Separations – Enlisted Separations), for Other Than Desertion (Court-Martial), with a BCD, in pay grade E-1.  He was credited with 2 years, 5 months, and 3 days of net active service and 682 days of lost time.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 2, then in effect, stated an enlisted person would receive a BCD pursuant only to an approved sentence of a court-martial imposing a BCD.  The appellate review must be completed and the affirmed sentence ordered duly executed.

19.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

20.  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 change a court-martial 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 in January 1968 the applicant was punished under Article 15 for failing to go to his appointed place of duty on several occasions and being AWOL.  He was convicted in March 1968 by a special court-martial of two specifications of failing to go to his appointed place of duty.  He was sentenced to confinement, a forfeiture of pay, and reduction to pay grade E-1.  In October 1968, he was convicted by a special court-martial of two specifications of being AWOL.  He was sentenced to confinement, a forfeiture of pay, and reduction in rank.  He was convicted in March 1969 by a special court-martial of two specifications of being AWOL.  He was sentenced to confinement for 6 months and 2 months were set aside.  
2.  The evidence of record also shows in July and October 1969 he was punished under Article 15 for three periods of AWOL.  He was convicted by a general court-martial of stealing the property of another Soldier.  He was sentenced to a BCD, a forfeiture of pay, and reduction to pay grade E-1.  He was convicted by a special court-martial of being AWOL and sentenced to confinement for 45 days.  He was subsequently discharged pursuant to the sentence of a general court-martial and issued a BCD after the sentence was affirmed.

3.  His contentions have been noted; however, there is no evidence he was discriminated against or that he was suffering from or diagnosed with any physical or medical condition at the time of discharge.  

4.  He has not submitted evidence to show that his discharge is unjust.  There is no error or injustice apparent in his record.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to a general discharge.  He was properly discharged in accordance with pertinent regulations, with due process and with no violation of his rights.  

5.  A BCD is adjudged by a court-martial when it determines a Soldier should be separated for bad conduct.  It appears his offenses warranted the BCD.

6.  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)                                         AR20100020899



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ABCMR Record of Proceedings (cont)                                         AR20100020899



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