BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110010651 


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 to a general discharge.

2.  The applicant states he enlisted in the U.S. Army to follow the path his father had taken to serve his country.

	a.  The applicant attended airborne training and was subsequently assigned to Company B, 503rd Infantry, 101st Airborne Division, Fort Campbell, Kentucky.  He states his company commander was prejudiced against black Soldiers.

	b.  He was given a general discharge with all benefits by a board of officers.  However, while he was in confinement, his company commander told him that he was giving him a bad conduct discharge.  He asserts the company commander's action was improper and the commander did not have the authority to do it.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 6 September 1973 for a period of 3 years.  He completed training and was awarded military occupational specialty 11B1P (Light Weapons Infantryman, Parachutist).

3.  The applicant received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice on six occasions.

4.  The applicant was tried by a special court-martial and was found guilty of two specifications of failing to go at the time prescribed to his appointed place of duty and of wrongfully communicating a threat to a noncommissioned officer.  On 12 December 1974, he was sentenced to be confined at hard labor for 2 months, forfeiture of $200.00 a month for 2 months, and a bad conduct discharge.

5.  On 27 February 1975, the convening authority approved the sentence, ordered the applicant's confinement in the Fort Campbell area confinement facility, and directed forwarding the record of trial to the Judge Advocate General of the Army for review by a U.S. Court of Military Review.

6.  On 27 February 1975, the applicant acknowledged with his signature that he was convicted by a special court-martial on 12 December 1974 and the approved sentenced included a bad conduct discharge.  He requested excess leave without pay and allowances pending completion of an appellate review of his case.

7.  On 1 December 1975, the U.S. Army Judiciary, Office of the Judge Advocate General, confirmed the U.S. Court of Military Appeals denied the applicant's petition for grant of review.

8.  Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, Special Court-Martial Order Number 138, dated 4 December 1975, confirmed the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with – and that portion of the sentence pertaining to confinement at hard labor having been served – the sentence was ordered duly executed.

9.  Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, Special Orders Number 110, dated 8 June 1976, discharged the applicant with a bad conduct discharge effective 8 June 1976.

10.  The applicant's DD Form 214 shows he was discharged under conditions other than honorable on 8 June 1976 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11.

	a.  He completed 2 years, 8 months, and 25 days of net active service.

	b.  Item 21 (Time Lost) and item 27 (Remarks) show he had 467 days in an excess leave status and 9 days lost under Title 10, U.S. Code, section 972, from 9 to 15 May 1974 and 8 to 9 July 1974.

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 sets forth the basic authority for the separation of enlisted personnel:

	a.  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.  

	b.  Paragraph 11-2 of chapter 11 (Dishonorable and Bad Conduct Discharge), in effect at the time, provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of the appellate review and after such affirmed sentence had been ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded because he was the subject of racial discrimination when his company commander arbitrarily changed the general discharge that was approved by a board of officers to a bad conduct discharge.

2.  The applicant's records show he acknowledged with his signature that he was convicted by a special court martial on 12 December 1974 and the approved sentenced included a bad conduct discharge.  Moreover, the applicant's contentions of racial discrimination were matters for consideration in his court-martial and/or the appeals process of his case.

3.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and bad conduct discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

4.  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 were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110010651



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ABCMR Record of Proceedings (cont)                                         AR20110010651



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