IN THE CASE OF:
BOARD DATE: 6 October 2011
DOCKET NUMBER: AR20110005861
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, upgrade of his bad conduct discharge (BCD) to a general discharge.
2. He states he is trying to get his discharge upgraded due to his health. He is now 63 years old. He states he was told that after a period of time his discharge could be upgraded.
3. He provides:
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* his DD Form 259A (Bad Conduct Discharge Certificate)
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 applicants 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 applicants 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 14 February 1966 for a period of 3 years.
3. His record contains the following orders issued by Headquarters Battalion, U.S. Army Artillery and Missile Center, Fort Sill, OK:
a. Special Court-Martial Order Number 687, dated 8 November 1966, shows he was convicted of being absent without leave (AWOL) from 10 July to 28 September 1966 and from 20 to 24 October 1966. He was sentenced to confinement at hard labor for 6 months and forfeiture $37.00 per month for
6 months. Only so much of the sentence as provided for confinement at hard labor for 6 months and forfeiture of $35.00 per month for 6 months was approved.
(1) Special Court-Martial Order Number 771, dated 29 November 1966, suspended the unexecuted portion of his sentence to confinement at hard labor for 6 months, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence was to be remitted.
(2) Special Court-Martial Order Number 244, dated 30 March 1967, vacated the suspension and ordered the unexecuted portion of his sentence to hard labor for 6 months to be duly executed.
b. Special Court-Martial Order Number 326, dated 20 April 1967, shows he was convicted of being AWOL from 3 December 1966 to 6 March 1967. He was sentenced to confinement at hard labor for 6 months and forfeiture of $37.00 per month for 6 months. Only so much of the sentence as provided for confinement at hard labor for 6 months and forfeiture of $30.00 per month for 6 months was approved.
c. Special Court-Martial Order Number 1137, dated 13 December 1967, shows he was convicted of being AWOL from 11 September to 15 November 1967. He was sentenced to confinement at hard labor for 6 months, forfeiture of $37.00 per month for 6 months, and reduction to the rank/grade of private (PV1)/E-1. Only so much of the sentence as provided for confinement at hard labor for 6 months and forfeiture of $35.00 per month for 6 months was approved.
(1) Special Court-Martial Order Number 84, dated 23 January 1968, suspended the unexecuted portion of his sentence to confinement at hard labor for 6 months, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence was to be remitted.
(2) Special Court-Martial Order Number 203, dated 3 May 1968, vacated the suspension and ordered the unexecuted portion of his sentence to hard labor for 6 months to be duly executed.
d. General Court-Martial Order Number 36, dated 11 June 1968, shows he was convicted of being AWOL from 3 March to 30 April 1968. He was sentenced to be discharged from the service with a BCD, forfeiture of all pay and allowances, and confinement at hard labor for 1 year.
(1) On 16 July 1968, the U.S. Army Judiciary Board of Review found the finding of guilty and sentence correct in law and fact; determined the findings of guilty and so much of the sentence as provided for a BCD, total forfeitures, and confinement at hard labor for 6 months should be approved; and affirmed the findings and modified sentence.
(2) General Court-Martial Order Number 328, dated 28 October 1968, ordered execution of only so much of the sentence as provided for a BCD, forfeiture of all pay and allowances and confinement at hard labor for 6 months.
4. The applicant's DD Form 214 shows he was discharged on 28 October 1968. His service was characterized as under other than honorable conditions and he received a DD Form 259A. He completed 7 months and 18 days of total active service with 759 days of time lost.
5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable or BCD) pursuant only to an approved sentence to a general court-martial or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
b. Paragraph 3-7a, provides that an honorable discharge (HD) 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.
c. Paragraph 3-7b, provides that a general discharge (GD) 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.
6. 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 evidence of record shows the applicant was charged with and convicted of being AWOL four times, and the suspension of his sentence was vacated on two occasions. His final conviction and sentence by general court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.
2. 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.
3. 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.
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