BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110011457 


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 bad conduct discharge.

2.  The applicant states in 1975 he was charged with robbery and received a 6 year prison sentence.  While he was incarcerated, he received his general education diploma, enrolled in college, and took classes in media technology.  Once he was paroled he began working with his stepfather as an office custodian.  He completed culinary school and began his career as a chef as well as a food service manager.  In January 1996, he purchased his own home.  He is married and a devoted father to his two children.  He is a personal fitness trainer and an avid cyclist.

3.  The applicant provides a résumé and a statement from an American Legion representative.

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 records show he enlisted in the Regular Army on 20 September 1972 and he held military occupational specialty 76A (Supply Clerk).

3.  He received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, as follows:

* On 12 March 1973, for being disrespectful to a noncommissioned officer (NCO) and disobeying a lawful order
* On 14 June 1973, for disobeying a lawful order and using provoking words to an NCO

4.  On 5 April 1974, he was found guilty by a general court-martial of one specification of being absent without leave (AWOL) from 11 January to 6 March 1974, one specification of wrongfully appropriating government property on 2 January 1974, and one specification of wrongfully possessing about 1 pound of marijuana on 3 January 1974.   He was sentenced to 9 months confinement, forfeiture of all pay and allowances, and a bad conduct discharge.

5.  On 28 August 1974, the convening authority approved the sentence and except for the bad conduct discharge ordered it executed.  

6.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 1456, dated 13 December 1974, shows that the applicant was restored to duty pending completion of appellate review.  He was assigned to the U.S. Army Personnel Control Activity, Fort Meade, MD on 13 December 1974.  

7.  A DD Form 173 (Joint Message Form), dated 16 December 1974, stated as a result of consideration by the Army and Air Force Clemency and Parole Board the unexecuted portion of his sentence to confinement was remitted and restoration to duty was disapproved.

8.  He was reported AWOL from his assigned unit on 14 January 1975 and he returned to military control on 30 January 1975.

9.  He was reported AWOL from his assigned unit on 14 April 1975 and was dropped from the rolls on 16 May 1975.

10.  A DA Form 4187 (Personnel Action), dated 25 September 1975, changed his duty status from AWOL to confinement by civil authorities effective 9 May 1975.  This form stated the applicant was apprehended by civil authorities on 9 May 1975 in Upper Marlboro, MD, for civil charges of armed robbery and three counts of kidnapping.

11.  Headquarters, Fort George G. Meade, Fort George G. Meade, MD, General Court-Martial Order Number 33, dated 17 July 1975, shows that as his sentence had been affirmed, the convening authority ordered the applicant's bad conduct discharge sentence executed.

12.  On 15 October 1975, he was discharged from the Army.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, as a result of court-martial with an under other than honorable conditions characterization of service.  He completed 1 year, 10 months, and 14 days of creditable military service with 437 days of time lost due to AWOL and confinement.

13.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  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.

14.  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.

15.  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's trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  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.  After a review of the applicant's record of service, it is clear his service did not meet the criteria for an honorable or a general discharge, or any other characterization of service other than the one he received.  Therefore, there is an 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 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)                                         AR20110011457





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ABCMR Record of Proceedings (cont)                                         AR20110011457



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