BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110006143 


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 honorable.

2.  The applicant states:

* He did all his time
* He has not been in jail or arrested
* He has been law abiding
* He has been having medical problems due to his service 

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Service personnel records

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 1 March 1967 for a period of 
3 years.  He completed his training and was awarded military occupational specialty 36C (lineman).  

3.  On 24 January 1968, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order and breaking restriction.

4.  On 13 March 1968, he was convicted by a special court-martial of failing to go at the time prescribed to his appointed place of duty, being absent without leave (AWOL) from 17 February 1968 to 24 February 1968 and for 6 hours on 
25 February, disobeying two lawful commands, and disobeying a lawful order.  He was sentenced to be confined at hard labor for 3 months and to forfeit $65.00 pay per month for 3 months. On 17 March 1968, the convening authority approved the sentence but suspended the confinement at hard labor for 3 months.  On 9 April 1968, the suspended portion of the sentence was vacated.   

5.  On 29 April 1968, he was convicted by a special court-martial of disobeying a lawful command, using disrespectful language (two specifications), being disorderly in quarters, and being AWOL from 5 April 1968 to 9 April 1968.  He was sentenced to be confined at hard labor for 6 months and to forfeit $65.00 pay per month for 6 months. On 17 June 1968, the convening authority set aside the conviction for disobeying a lawful command, disrespect, and being disorderly.  The convening authority set aside so much of the sentence in excess of 
2 months hard labor and forfeiture of $65.00 per month for 2 months.   

6.  On 10 July 1968, he was convicted by a general court-martial of behaving with disrespect toward a superior commissioned officer, treating with contempt and being disrespectful in deportment toward a staff sergeant, and damaging military property.  He was sentenced to be discharged from the service with a dishonorable discharge, to forfeit all pay and allowances, and to be confined at hard labor for 1 year.  On 9 August 1968, the convening authority approved the sentence.   

7.  On 18 September 1968, the Army Board of Review found the findings of guilty and sentence correct in law and fact and determined the findings of guilty and only so much of the sentence as provided for a bad conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for 1 year should be approved.  The board affirmed the findings of guilty and modified sentence.

8.  On 22 August 1968, he underwent a physical examination at the U.S. Disciplinary Barracks (USDB) at Fort Leavenworth, KS and was found qualified for general duty.  His USDB admission summary, dated 28 October 1968, states he was qualified for general service and hard labor. 

9.  On 29 October 1968, the convening authority ordered the bad conduct discharge to be executed.

10.  On 14 November 1968, he underwent a physical examination at the USDB and was found qualified for discharge.

11.  He was discharged with a bad conduct discharge on 2 December 1968 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, as a result of court-martial.  He had served 
1 year and 24 days of creditable active service with 252 days of lost time.

12.  There is no evidence of record which shows he was diagnosed with any medical problems prior to his discharge.  

13.  On 7 March 1969, he underwent a physical examination at the USDB and he reported his health was "GOOD."   

14.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states 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.

15.  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.  

16.  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.  




17.  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.  He contends he has not been in jail or arrested and he has been law abiding since his discharge.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

2.  He also contends he has been having medical problems due to his service.  
However, no evidence shows he was diagnosed with any medical problems prior to his discharge on 2 December 1968.  In addition, he reported his health was good while in confinement at the USDB in March 1969, 3 months after his discharge.  The ABCMR does not upgrade discharges to facilitate a Soldier's access to Department of Veterans Affairs benefits.

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

4.  The applicant's record of service includes one NJP, two special court-martial convictions, one general court-martial conviction, and 252 days of time lost.  His record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or general discharge.

5.  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.




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)                                         AR20110006143





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ABCMR Record of Proceedings (cont)                                         AR20110006143



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