IN THE CASE OF:	  

		BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20110002002 


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 (BCD) to a discharge that will qualify him for medical benefits.

2.  The applicant states he contracted hepatitis C in the Army and he needs medical attention.

3.  The applicant provides a one-page, hand-written letter, dated 26 January 2011, explaining his application.

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 with a moral waiver in Dallas, Texas, on 11 February 1975 for a period of 4 years; assignment to Fort Hood, Texas; and a cash enlistment bonus.  He completed one-station unit training as an infantry indirect fire crewman at Fort Polk, Louisiana, and was then transferred to Fort Hood, Texas, on 25 June 1975.

3.  The applicant was absent without leave (AWOL) on 14 May 1976 and remained absent until he returned to military control on 18 May 1976.  The record is silent as to any punishment imposed for this offense.

4.  The applicant again was AWOL from 14 to 20 June 1976 and 14 to 22 July 1976.  On 22 July 1976, he was arrested and confined by civil authorities until 15 August 1976 when he was returned to military control.  He again was AWOL from 18 to 21 August 1976.

5.  On 15 October 1976, he was convicted pursuant to his pleas by a special court-martial of three specifications of being AWOL from 14 to 20 June 1976, 14 to 22 July 1976, and 18 to 21 August 1976 and two specifications of larceny of property belonging to two other Soldiers.  He was sentenced to confinement at hard labor for 4 months, a forfeiture of $150.00 pay for 3 months, reduction to pay grade E-1, and a BCD.  He was transferred to the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas.

6.  On 26 January 1977, he was restored to duty pending completion of his appellate review.

7.  On 11 April 1977, the U.S. Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.  On 22 August 1977, the U.S. Court of Military Appeals denied the applicant's petition for review.

8.  On 8 February 1978, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He completed 2 years, 5 months, and 16 days of active service and had 192 days of lost time due to civil and military confinement.

9.  There is no evidence to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  On 24 April 1996, the applicant authorized the release of information from his military records to officials at the Texas Department of Criminal Justice for the 


purpose of assessing his potential for placement in Project RIO [Re-Integration of Offenders], a job placement program.

11.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of 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.

13.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his otherwise undistinguished record of service.

2.  The applicant's 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.

3.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.  Accordingly, his punishment was not disproportionate to the offenses for which he was convicted and he failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.



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)                                         AR20110002002



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110002002



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1