IN THE CASE OF:	  

		BOARD DATE:	  18 August 2011

		DOCKET NUMBER:  AR20110003047 


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 an honorable or a general discharge.

2.  He states he served on active duty from 2 November 1970 to his reenlistment on 16 August 1972 with an honorable discharge.  He was soon reassigned to Fort Carson, CO.  He went home on leave for 30 days, got married, and they moved back to his duty station in Colorado.  Things were good for the first
3 months.  Then his wife told him that he was gone too much and she was pregnant.  His wife soon left and he tried to stay, but he made the mistake and left to find her.  His wife returned with him to his duty station and at that time he was considered absent without leave (AWOL).  He was put in jail and discharged with a BCD on 21 March 1975.

3.  He also states that he deeply regrets his actions to this day.  People always say, "If I only knew then what I know now then maybe I could have avoided this mistake."  Since that time he has been a good citizen and worked as a truck driver for the Teamsters for 18 years.  He is now receiving his pension.  He hopes to be forgiven for his past and have his discharge upgraded to an honorable discharge.  

3.  He provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 16 August 1972
* 
his DD Form 214 (Report of Separation from Active Duty) for the period ending 21March 1975

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) on 2 November 1970 for a period of 3 years.  He completed training and he was awarded military occupational specialty 11E (Armor Crewman).  He served in Germany from 10 April 1971 through 31 August 1972.  He was advanced to the rank/grade of specialist four (SP4)/E-4 on 21 December 1971.

3.  He was honorably released from active duty on 16 August 1972 for the purpose of immediate reenlistment.  He reenlisted in the RA on 17 August 1972 for a period of 4 years.

4.  On 2 January 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 1 January 1973.

5.  He again accepted NJP under Article 15, UCMJ, on:

* 30 May 1983 for wrongfully appearing at the company in an unclean and unpressed uniform
* 24 June 1983 for being AWOL from 11 through 18 June 1983

6.  On 13 December 1973, he was convicted by a special court-martial for being AWOL from 6 through 25 November 1973.

7.  On 12 February 1974, the applicant's company commander initiated a Fort Carson (FC) Form 1883 (Bar to Enlistment/Reenlistment) on the applicant due to his unsatisfactory conduct and efficiency, and record of nonjudicial punishments.

8.  On 21 June 1974, he was convicted by a special court-martial for being AWOL from 28 February through 20 May 1974.  His sentenced included discharge from the Army with a BCD.

9.  On 16 August 1974, the convening authority approved the sentence and deferred the service of the sentence to confinement.

10.  On 16 December 1974, after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD executed.

11.  Accordingly, on 21 March 1975 he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 11, as a result of court-martial in the rank/grade of private (PV1)/E-1.  He completed 4 years and 6 days of total active service with 134 days of time lost.

12.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review had to be completed and the sentence affirmed before it could be duly executed.

14.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, states 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.

16.  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 the applicant reenlisted in the RA on 17 August 1972.  In February 1973, a bar to reenlistment was initiated against him for unsatisfactory conduct and efficiency.  He was twice convicted by special courts-martial of being AWOL.  On 21 March 1975, he was discharged pursuant to the sentence of his second special court-martial and he was issued a BCD after the sentence was affirmed.

2.  He has provided no evidence to show that his discharge was unjust at the time of his misconduct.  There is no error or injustice in his record.  He has provided no evidence or argument to show his discharge should be upgraded to a general or fully honorable discharge.  He was properly discharged in accordance with pertinent regulations, with due process.  His misconduct during this period of enlistment, when weighed with his overall disciplinary history, warranted his BCD.  In view of the foregoing, there is no basis for granting his requested relief.

3.  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 his undistinguished record of service and absent any mitigating factors, the type of discharge directed in 1975 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)                                         AR20110003047



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ABCMR Record of Proceedings (cont)                                         AR20110003047



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