IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110005749 


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, in effect, an upgrade of his discharge under other than honorable conditions to a general discharge under honorable conditions.

2.  The applicant states his legal representation told him he would receive a general discharge under honorable conditions if he pled guilty and did not go to trial.  The applicant feels he was not properly represented by counsel because he did not receive a general discharge under honorable conditions.

3.  The applicant provides no 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 enlisted in the Regular Army on 21 January 1972 at the age of 18 years, 1 month, and 9 days.  It appears he completed initial entry training and was awarded military occupational specialty 13A (Field Artillery Basic).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 21 April 1972 for being absent without leave (AWOL) for the period 17 April through 21 April 1972.

4.  His records contain a DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record) Record of Court-Martial Conviction).  Item 50 (Synopsis of Specifications, Including Date of Offense) shows the applicant was AWOL from:

* 4 August 1973 until on or about 6 August 1973
* 15 August 1973 until on or about 19 September 1973
* 20 September 1973 until on or about 2 October 1973

5.  On 17 June 1974, he pled guilty at a special court-martial to four specifications of being AWOL from:

* 4 August 1973 to 6 August 1973
* 15 August 1973 to 19 September 1973
* 20 September 1973 to 2 October 1973
* 4 February 1974 to 8 April 1974

6.  The court sentenced him to a forfeiture of $217.00 per month for 2 months,  confinement at hard labor for 60 days, reduction to private/E-1, and a bad conduct discharge.

7.  Headquarters, Fort Carson and 4th Infantry Division (Mechanized), Fort Carson, CO, Special Court-Martial Order Number 23, dated 3 February 1975, shows the convening authority ordered the applicant's bad conduct discharge sentence executed, but the unexecuted portion of the sentence to forfeiture of $217.00 pay per month for 2 months was remitted.

8.  He was discharged on 26 February 1975.  His DD Form 214 (Report of Separation from Active Duty) shows he was issued a bad conduct discharge under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial with an under other than honorable conditions characterization of service and issuance of a DD Form 259A (Bad Conduct Discharge Certificate).  It further shows he completed 2 years, 3 months, and 13 days of creditable military service and he had 299 days of lost time.

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

10.  There is no evidence in the applicant's personnel service record that shows the applicant was unsatisfied with his legal representation or sought to change his legal representation.

11.  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.

12.  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 evidence of record shows his trial by special 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 characterized the misconduct for which he was convicted.  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.

2.  The applicant's contentions regarding misrepresentation by his legal counsel  relate to matters which could have been raised at the court-martial or in the court-martial appellate process and furnish no basis for re-characterization of the discharge.

3.  After a review of his entire record of service including one instance of NJP,  multiple instances of AWOL, and a court-martial conviction, the applicant's service clearly did not meet the standard of acceptable conduct and performance of duty for Army personnel.  As a result, there is insufficient basis to upgrade his 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 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)                                         AR20110005749



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ABCMR Record of Proceedings (cont)                                         AR20110005749



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