BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110004051 


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 an honorable discharge.

2.  The applicant states he received an honorable discharge, reenlisted, and received an under other than honorable conditions discharge. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 1 August 1971.

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 records show he enlisted in the Regular Army on 10 August 1970 for a period of 3 years.  The applicant completed the training requirements and he was awarded military occupational specialty 62B (Engineer Equipment Repairman).  

3.  On 1 August 1971, the applicant was honorably discharged for immediate reenlistment.  On 2 August 1971, he reenlisted for a period of 4 years.

4.  On 9 May 1972, the applicant received nonjudical punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 19 April to 5 May 1972.  His punishment consisted of reduction to private first class/pay grade E-3, suspended for 14 days, a forfeiture of $75.00 pay, and restriction and extra duty for 14 days.

5.  On 6 March 1974, the applicant received NJP under Article 15, UCMJ, for violating a lawful general regulation by being apprehended at an off limits club in Germany.  His punishment consisted of a forfeiture of $58.00 pay, suspended for 60 days, and extra duty for 14 days. 

6.  On 7 April 1975, the applicant received NJP under Article 15, UCMJ for three specification of violating lawful general regulations by having in his possession 1.17 grams more or less of methamphetamines, having in his possession hypodermic syringes and one hypodermic needle, and wrongfully wearing an earring while in military uniform on 6 March 1975.  His punishment consisted of reduction to the rank of specialist four/pay grade E-4, a forfeiture of $249.00 pay for 2 months, and 45 days of extra duty.

7.  On 4 August 1975, the applicant was convicted by a special court-martial of being disrespectful, disobeying an order, assault, and being AWOL from 20 May to 2 June 1975.  He was sentenced to reduction to the rank of private/E-1 and confinement at hard labor for 60 days.   

8.  On 29 April 1976, the applicant was convicted by a special court-martial of being AWOL from 20 January to 24 March 1976.  He was sentenced to a bad conduct discharge, a forfeiture of $230.00 pay for 3 months, confinement at hard labor for 64 days, and to be reduced to private/E-1.  On 20 July 1976, the convening authority approved the sentence and ordered the record of trial forwarded to The Judge Advocate General of the Army for appellate review.

9.  On 17 September 1976, the applicant received NJP under Article 15, UCMJ for being AWOL from 9 to 12 September 1976 and from 15 to 21 October 1976.  His punishment consisted of a forfeiture of $60.00 pay.

10.  On 11 November 1976, the U.S. Army Court of Military Review affirmed the findings and sentence. 

11.  On 15 March 1977, the applicant received another NJP under Article 15, UCMJ for being AWOL from 26 October 1976 to 9 March 1977.  His punishment consisted of a forfeiture of $185.00 pay for 2 months and extra duty for 45 days.

12. The adjudged sentence of a BCD, confinement at hard labor for 64 days, a forfeiture of $230.00 pay for 3 months and reduction to the rank of private/pay grade E-1 was affirmed pursuant to Article 66 and the provisions of Article 71c having been complied with, the sentence was ordered duly executed on
7 January 1977, by Headquarters,7th Infantry Division, Fort Ord, California in Special Court-Martial Order Number 5.  

13.  Accordingly, he was discharged under the provisions of Army Regulation 635-200, chapter 11 with a BCD 18 March 1977.  He had served 4 years, 
5 months, and 29 days of total active service and he had 413 days of lost time. 

14.  On 6 April 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge

15.  Army Regulation 635-200, in effect at that time, set forth the basic authority for separation of enlisted personnel.  Paragraph 11-1 of this regulation states that an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.

16.  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.

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.  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 contends his discharge should be upgraded because he had already served in an honorable manner.

2.  The evidence of record shows the applicant received five Article 15s and two court-martial convictions during the period of service under review.  The available evidence clearly shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Moreover, the applicant’s overall quality of service during the period of service under review was not satisfactory and he is not entitled to a general discharge.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with the applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

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)                                         AR20110004051



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ABCMR Record of Proceedings (cont)                                         AR20110004051



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