BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20100029864 


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 be upgraded to honorable or general under honorable conditions.

2.  The applicant states:

* the incident which caused him to receive a bad conduct discharge was because of a small disagreement
* he was only 18 years old and did not realize the lasting impact this would have on his life as he attempts to apply for various veterans' benefits
* he believes the time he served on active duty was not all bad conduct
* his military records can attest he served honorably prior to being discharged

3.  The applicant provides his DD Form 214 (Report of Separation from the Armed Forces of the United States).

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.  He was born on 17 August 1933.  He enlisted in the Regular Army on 22 March 1951 at 17 years, 7 months, and 6 days of age.  He completed his training and was awarded military occupational specialty 1745 (light weapons infantryman).  He was honorably discharged on 28 December 1953 for immediate reenlistment.  He reenlisted on 29 December 1953 for a period of 3 years.  He was honorably discharged on 30 July 1954 for immediate reenlistment.  He reenlisted on 31 July 1954 for a period of 3 years.

3.  On 3 March 1955, he was convicted by a general court-martial of being absent without leave (AWOL) from 8 December 1954 to 28 January 1955, falsely altering a pass with intent to deceive (two specifications), wrongfully using another's military leave orders with intent to deceive, and resisting apprehension.  He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for 1 year.  On 4 March 1955, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for 1 year.

4.  On 25 March 1955, the U.S. Army Board of Review affirmed the findings of guilty and the sentence.

5.  On 24 May 1955, the convening authority ordered the bad conduct discharge to be executed.

6.  He was discharged on 6 June 1955 with a bad conduct discharge under the provisions of Army Regulation 615-364 (Enlisted Personnel – Dishonorable and Bad Conduct Discharge) as a result of a court-martial.  He completed a total of 3 years, 10 months, and 6 days of creditable active service with 132 days of lost time.

7.  Army Regulation 615-364, in effect at the time, set forth the basic authority for the separation of enlisted personnel with dishonorable and bad conduct discharges.  It stated that an enlisted person would be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

9.  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.

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.  He contends the incident which led to his bad conduct discharge was due to a small disagreement.  However, AWOL, falsely altering a pass with intent to deceive (two specifications), wrongfully using another's military leave orders with intent to deceive, and resisting apprehension are not minor offenses.

2.  Age is not a sufficiently mitigating factor.  Although he was 17 years of age when he enlisted, he successfully completed training.  In addition, he served almost 4 years prior to his general court-martial.

3.  The ABCMR does not correct records solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  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 the discharge appropriately characterizes the misconduct for which he was convicted.

5.  His entire record of service was carefully considered.  However, his record of service during his last enlistment included one general court-martial conviction and 132 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an upgraded 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 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)                                         AR20100029864



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ABCMR Record of Proceedings (cont)                                         AR20100029864



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