BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110008639 


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 upgrade of his bad conduct discharge (BCD).

2.  The applicant states:

   a.  He regrets and is ashamed of the mark that has followed him since his discharge.
   
   b.  He only had this one indiscretion during his 6 years of military service.
   
   c.  Prior to the incident that led to his BCD, he obtained his General Educational Development (GED) equivalency diploma, was promoted through the ranks to sergeant (SGT/E-5), and served during the Vietnam conflict and three tours in Korea.
   
   d.  He took two tires off a car he thought was abandoned because it sat in one spot for a long period.  When questioned, he immediately admitted to taking them, apologized, and tried to pay for them.  However, his commander said he had no other choice but to treat the incident as a court-martial offense.
   
   e.  He has not been in trouble since then.  Clearly, he learned his lesson regarding good judgment and respectfully requests his discharge be upgraded to a level that will allow him veterans benefits for the purpose of health coverage.
   
3.  The applicant provides a copy of his DD Form 214.

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 military records show he first enlisted in the Regular Army (RA) on 16 June 1971 and he continued to serve until he was honorably discharged from active duty on 11 April 1974, for the purpose of immediate reenlistment.  The DD Form 214 issued at that time shows he completed 2 years, 9 months, and 26 days of creditable active military service.

3.  On 12 April 1974, the applicant reenlisted in the RA.  He held military occupational specialty 76Y (Supply Specialist).

4.  The applicant’s DA Form 20 (Enlisted Qualification Record) confirms, in Item 18 (Appointments & Reductions), he was advanced to specialist five (SP5)/E-5 on 16 November 1975.  This was the highest rank/grade he attained while serving on active duty.  It also shows he was reduced to private (PV1)/E-1 on 10 September 1976.

5.  On 17 July 1976, pursuant to his pleas, a special court-martial (SPCM) found the applicant guilty of violating Article 121 of the Uniform Code of Military Justice by stealing two tires and two MAG wheels, a value of more than $50.00 but less than $100.00, the property of another Soldier.

6.  The resultant sentence imposed by the military judge included a BCD, confinement at hard labor for 2 months, forfeiture of $200.00 a month for two months, and a reduction to PVT/E-1.  The GCM convening authority approved the sentence.

7.  On 30 September 1976, the U.S. Court of Military Review issued a "Court-Martial Order Correcting Certificate" to cause the initial promulgating order to truly conform to the proceedings as shown in the record of trial.  It ordered Headquarters, Fort Campbell, Fort Campbell Kentucky, SPCM Order Number 9, dated 10 September 1976 to be corrected by:

   a.  Adding the words "BY MILITARY JUDGE" after the word "SENTENCE."
   
   b.  Adding the words "(No previous convictions considered)" to make a fourth line after the SENTENCE.
   
8.  On 1 April 1977, SPCM Order Number 43, issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, directed that, Article 71c of the UCMJ having been complied with, the BCD portion of the sentence be duly executed.  On 13 April 1977, the applicant was discharged accordingly.

9.  The DD Form 214 issued to the applicant on the date of his discharge shows that he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, after completing a total of 5 years, 8 months, and 3 days of creditable active military service and accruing 54 days of time lost.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 11 of this regulation, in effect at the time, provided that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

	b.  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.

	c.  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.  


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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his BCD should be upgraded to allow him to receive veterans benefits.

2.  The applicant was discharged after completion of the appellate process and only after his sentence was affirmed by the appropriate appellate court.  His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

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.  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.  Additionally, discharges are not upgraded solely for the purpose of making an individual eligible for benefits offered by another agency.

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)                                         AR20110008639





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ABCMR Record of Proceedings (cont)                                         AR20110008639



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