IN THE CASE OF:	  

		BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110003684 


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 an honorable discharge.

2.  The applicant states he was young and immature and did a grave injustice to himself and his family.  He is pleading for a chance to correct a lot of mistakes he has made.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and a letter of reference.

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 was born on 20 May 1954.  His military records show that he enlisted in the Regular Army on 11 January 1974 in pay grade E-3.  He completed initial entry training and was awarded the military occupational specialty of cannon crewman.  The highest grade he held pay grade E-3.

3.  He accepted nonjudicial punishment (NJP) on two occasions during the period 4 February to 24 March 1975 for willfully disobeying a lawful order on 20 January 1975 and for failing to go at the time prescribed to his appointed place of duty on 17 March 1975.

4.  A DA Form 4126 (Bar to Reenlistment Certificate) shows that on 12 February 1976 his commander initiated an action to bar him from reenlistment due to a record of nonjudicial punishment for disobeying a lawful order and failure to go at the prescribed time to his appointed place of duty.  His commander indicated additional reasons for this action were his failure to pay just debts and indications of untrainability or unsuitability in that he showed no sense of responsibility.  He was frequently late for formation and details with excuses that were mostly unjustified.  He had been counseled by the entire chain of command on numerous occasions for attitude, appearance, and duty performance.  His commander indicated the applicant had the ability to do the job but did not show the desire, dedication, or self discipline to be a productive Soldier in the Army.  The bar was approved on 24 March 1976.

5.  On 4 May 1976, a general court-martial convicted the applicant of escaping from the lawful custody of First Lieutenant ____ and Captain _____ and for wrongfully having in his possession 353 grams, more or less, of marijuana on or about 19 March 1976.  He was sentenced to a bad conduct discharge, forfeiture of all pay and allowances, reduction to E-1, and confinement at hard labor for 18 months.  The sentence was approved.

6.  General Court-Martial Order Number 749, dated 1 September 1976, shows the unexecuted portion of his sentence to confinement at hard labor was remitted by the Secretary of the Army on 31 August 1976.  The applicant was restored to duty pending completion of appellate review.

7.  General Court-Martial Order Number 12, dated 10 February 1978, shows the sentence was affirmed.  By action of the Secretary of the Army the unexecuted portion of the sentence to confinement at hard labor was remitted.  It shows the appellate review was completed and the sentence, as modified, was ordered executed.

8.  Accordingly, on 20 March 1978, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, as a result of a court-martial.  He was given a bad conduct discharge.  The DD Form 214 he was issued shows he completed 3 years, 9 months, and 22 days of active service for this period with 138 days time lost due to imprisonment.

9.  Army Regulation 635-200, chapter 11, 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.

10.  Army Regulation 635-200, 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.

11.  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 discharge with characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

12.  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 issued a bad conduct discharge pursuant to the approved sentence of a general court-martial for escaping from lawful custody and for wrongfully having in his possession approximately 353 grams of marijuana.  The appellate review was completed and the affirmed sentence ordered executed.  Conviction and discharge were affected in accordance with applicable laws and regulations in effect at the time, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  Records show he was 21 years old at the time he committed the offenses for which he was discharged.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

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 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.

4.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to an honorable or general 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 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)                                         AR20110003684



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ABCMR Record of Proceedings (cont)                                         AR20110003684



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