IN THE CASE OF:	

		BOARD DATE:	19 April 2011

		DOCKET NUMBER:  AR20100024735 


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 upgrade of his bad conduct discharge (BCD) to a medical discharge with honorable conditions.

2.  The applicant states he got drunk and stole a television.  Since he was a kid he was mischievous, not violent.   He has been suffering from depression since he was 15 years old.  He states that it doesn't seem fair that he received a BCD for stealing one television.  He should have received an Article 15.  He is a good man and a good American citizen and he would like to have his records corrected.

3.  The applicant did not provide any additional documentation.

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 was inducted into the Army of the United States on 13 August 1969.  He completed training and he was awarded military occupational specialty (MOS) 76V (Equipment Storage Specialist).  He later reclassified to MOS 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 33 (Appointments and Reductions) that between July 1970 and August 1970 the applicant was reduced from private first class (PFC)/E-3 to private (PV1)/E-1.

4.  Records show the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ) on:

* 2 April 1970 for violating a lawful regulation by failing to sign out on pass prior to leaving the post
* 27 July 1970 for failing to obey a lawful order from a noncommissioned officer (NCO) to perform kitchen police duties
* 7 August 1970 for unlawfully striking another Soldier in the face with his fists

5.  On 18 December 1970, he was convicted by a special court-martial of stealing a television set from another Soldier and using disrespectful language towards a first lieutenant.  He was sentenced to a bad conduct discharge (BCD), confinement at hard labor for 3 months, forfeiture of $83.00 per month for
6 months, and reduction to PV1/E-1.

6.  While awaiting final affirmation of the BCD he was convicted in civil court of robbery and sentenced to 10 years in the Alaska State Prison on 8 April 1971  

7.  The U.S. Army Court of Military Review affirmed the special court-martial findings of guilty and the sentence on 28 March 1972.  The Court of Military Appeals declined to review the case on 25 May 1972.

8.  Special Court-Martial Order Number 40, issued by Headquarters U.S. Army, Alaska, dated 12 June 1972, announced that the applicant's sentence was affirmed and that the sentence was to be executed.  That portion of the sentence pertaining to confinement had been served.

9.  His records do not show he had any medical problems that would warrant processing through the Army's physical disability evaluation system.


10.  On 24 November 1972, the applicant was discharged with a BCD under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, with a separation program number (SPN) of 292 (Other Than Desertion (Court-Martial).

11.  On 2 September 1981, the Army Discharge Review Board (ADRB) denied the applicant's request to re-characterize his service.

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge.  Chapter 11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and the appellate review must be completed and the affirmed sentence ordered duly executed.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation.  The regulation is not applicable to members charged with offenses for which dismissal or a punitive discharge may be adjudged by a court-martial.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

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 applicant has not provided sufficient evidence to substantiate his contention that his BCD should be changed to a medical discharge.

2.  The applicant's record of service prior to the BCD offenses is marred with repeated incidents of misconduct.

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

4.  The applicant does not deny he committed the offenses with which he was charged.

5.  His record of service clearly did not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

6.  Based on his charged offenses for which a punitive discharge could be adjudged by a court-martial, he was not eligible for a physical disability evaluation for the purpose of medical separation.

7.  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.

8.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


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)                                         AR20100007296



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ABCMR Record of Proceedings (cont)                                         AR20100024735



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