IN THE CASE OF:	  

		BOARD DATE:	  13 September 2011

		DOCKET NUMBER:  AR20110000449


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, in effect, upgrade of his Bad Conduct Discharge (BCD).

2.  The applicant states, in effect, that he was young at the time of his bad conduct discharge, but since then he has changed his life around.  He is not saying he did not get in trouble, but by the same token he had a period of honorable service that is reflected on his first DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

3.  The applicant provides his DD Form 214 for the period ending 19 November 1963, his DD Form 214 for the period ending 23 May 1966, and 6 third-party letters of support.
  
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests upgrade of the applicant's bad conduct discharge.

2.  Counsel states that after careful review of the applicant's request and the evidentiary evidence, the issues raised on his DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) amply advance his contentions and substantially reflect the probative facts needed for equitable review.  

3.  Counsel provides no 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 enlisted in the Regular Army (RA), for a 3-year term, on            20 September 1962.  He completed training and was awarded military occupational specialty (MOS) 111.07 (Light Weapons Infantryman), later re-designated as MOS 11B.  

3.  On 19 November 1963, he was honorably discharged for the purpose of immediate reenlistment.  On 20 November 1963, he reenlisted in the RA for a    3-year term.

4.  His records show he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 4 occasions:

* on 6 May 1964, for absenting himself from the company area without proper authority on 6 May 1964
* on 14 November 1964, for being absent without leave (AWOL) between 1800 hours, 6 November 1964 and 0300 hours, 7 November 1964
* on 17 January 1965, for failing to go, at the prescribed time, to his appointed place of duty on 12 January 1965
* on 19 February 1965, for failing to go, at the prescribed time, to his appointed place of duty on 18 February 1965

5.  At a special court-martial in the Republic of Korea, he pled not guilty to 
2 specifications of a single charge of wrongful possession and use of a habit forming narcotic drug, on or about 6 November 1964.  

6.  On 8 February 1965, the Court found him guilty of all specifications and the charge, and sentenced him to confinement at hard labor for 6 months, forfeiture of $75.00 per month for 6 months, and reduction to the rank/grade of private/E-1.

7.  On 9 February 1965, the convening authority approved the sentence and ordered it duly executed, except for the period of confinement, which he ordered suspended until 7 May 1965, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action.  

8.  At a general court-martial at Fort Campbell, KY, he pled guilty to a single specification of the charge of AWOL, from 8 June 1965 until on or about 
12 October 1965.  

9.  On 7 January 1966, the Court found him guilty of the specification and charge, and sentenced him to be dishonorably discharged, confined at hard labor for 
1 year, and forfeiture of all pay and allowances.

10.  On 20 January 1966, the convening authority approved the sentence and, except for the dishonorable discharge, ordered it duly executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

11.  On 28 February 1966, the U.S. Army Board of Review affirmed the approved findings of guilty and modified the sentence to provide for a bad conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for 1 year.  On an unknown date in 1966, the U.S. Court of Military Appeals denied his petition for review.

12.  General Court-Martial Order Number 256, Headquarters, Fort Leavenworth, KS, dated 5 May 1966, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the modified sentence, including the bad conduct discharge, be duly executed.

13.  On 23 May 1966, he was discharged in accordance with the provisions of Army Regulation 635-204 (Personnel Separations – Dishonorable and Bad Conduct Discharges).  His DD Form 214 shows he was discharged with an under other than honorable character of service.  The highest rank/grade he attained while serving on active duty was sergeant/E-5.

14.  He provides 6 third-party letters of support, each attesting to his honor, integrity, dedication, and selflessness as a church member and community volunteer.  

15.  Army Regulation 635-204, in effect at the time, set forth the basic authority for the separation of enlisted personnel as a result of court-martial.  Paragraph 1(a) of the regulation provided, in pertinent part, that 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.

16.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 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.

17.  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.  

18.  Army Regulation 635-200, paragraph 3-10, provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  

19.  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 was given a bad conduct discharge pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offense charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.  

2.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  In view of the foregoing, there is an insufficient basis to grant 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 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20110000449



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