IN THE CASE OF:	  

		BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110003177 


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 that his bad conduct discharge (BCD) be upgraded to a general discharge.

2.  He states that he believes his BCD should be upgraded to a general because other Soldiers have received a general discharge for the same offense.

3.  He does not provide any 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's record shows he enlisted in the Regular Army on 10 October 1967.

3.  On 25 July 1968, he was convicted by a special court-martial of being absent without leave (AWOL) from 27 February to 9 July 1968.  The court sentenced him to reduction to the lowest enlisted grade, a forfeiture of $65.00 pay per month for 6 months, and confinement at hard labor for 6 months.  His sentence was approved accept that portion of the sentence to confinement at hard labor for 6 months was suspended for 6 months; however, it was vacated on 
24 March 1969.

4.  On 16 April 1969, he was convicted by a general court-martial for being AWOL from 27 July 1968 to 5 March 1969.  The court sentenced him to a forfeiture of all pay and allowances and a BCD.  The convening authority approved so much of the sentence as provided for a forfeiture of $45.00 pay per month for 6 months and a BCD.  

5.  The U.S. Army Board of Review certified the findings and sentence on 14 May 1969.  The convening authority ordered the BCD executed on 21 May 1969.

6.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 29 May 1969 with the issuance of a Bad Conduct Discharge Certificate.  The reason and authority are listed as Army Regulation 635-204 (Personnel Separations), separation program number 292, other than desertion - court-martial.  He had completed 4 months and 20 days of total active service and he had 450 days of lost time.

7.  Army Regulation 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with a dishonorable or bad conduct discharge.  This regulation states that an enlisted person will be dishonorably discharged pursuant only to an approved sentence of a general court-martial imposing a dishonorable discharge.

8.  Army Regulation 635-200 (Personnel Separations), 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.



9.  Court-martial convictions stand as adjudged or as 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 Army Board for Correction of Military Records 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 available evidence shows he was convicted by a general court-martial for being AWOL.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed by the court-martial.  After a thorough review of his record and the issues that he raised the Board found no basis for granting clemency in this case. 

2.  The fact he now argues that other Soldiers have received a general discharge for the same offense is not sufficient justification to warrant an upgrade of his discharge.  His records show he received a special court-martial and was sentenced to 6 months in confinement for previously being AWOL.  He went AWOL again within 2 days of his first court-martial action which resulted in his second court-martial and the BCD.  There is no evidence and he has not provided any to show an error or unjust treatment in his court-martial proceedings.  

3.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  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.

5.  In view of the foregoing, there is no basis for granting his 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 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)                                         AR20110003177



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ABCMR Record of Proceedings (cont)                                         AR20110003177



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