IN THE CASE OF:	  

		BOARD DATE:  19 January 2012

		DOCKET NUMBER:  AR20110012601 


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 under other than honorable conditions (UOTHC) discharge.

2.  The applicant states he witnessed a crime on base that he did not report, nor was involved in.

3.  The applicant provides:

* self-authored statement
* 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’s military records show he enlisted in the Regular Army and entered active duty on 22 April 1974.  He was trained in, awarded, and served in military occupational specialty 11C (Indirect Fire Infantryman).

3.  The applicant’s record confirms that he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five separate occasions between the period 25 August - 13 November 1975 for the indicated offenses:

* disobeying a lawful order on five separate occasions
* failing to go to his appointed place of duty at the time prescribed
* dereliction (three separate occasions)
* being absent without leave (AWOL) by leaving his appointed place of duty

4.  On 9 February 1976, a Special Court Martial (SPCM) convicted the applicant of theft of a fifteen inch colored television valued at $75.00.  The sentence imposed by the military judge included confinement at hard labor for 2 months, forfeiture of $240.00 pay per month for 2 months, reduction to PV1, and a bad conduct discharge (BCD).

5.  On 5 April 1976, the SPCM convening authority approved the sentence.

6.  SPCM Order Number 305, dated 17 September 1976, issued by Headquarters, United States Army Disciplinary Barracks, Fort Leavenworth, Kansas, directed, the guilty findings and sentence having been finally affirmed, that the sentence be duly executed.  On 10 December 1976, the applicant was discharged accordingly.

7.  The separation document (DD Form 214) issued to the applicant on the date of his discharge confirms he completed a total of 2 years, 3 months, and 25 days of creditable active military service.  It also shows that he was separated under the provisions of paragraph 11-2, Army Regulation 635-200, by reason of 
court-martial.

8.  On 17 March 1987, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.


9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

	a.  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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

	c.  Chapter 11 of Army Regulation 635-200, 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.

10.  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 his punitive discharge should be upgraded because he only witnessed a crime on base; and he was not involved in it.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms a SPCM convicted the applicant of theft which resulted in his sentence that included a BCD.  His trial by court-martial was warranted by the gravity of the offense for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulation and his discharge appropriately characterizes the misconduct for which he was convicted.


 3.  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 punishment imposed.  Given the applicant’s undistinguished record of service and absent any compelling mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency in the form of either a fully honorable or a general under honorable conditions discharge 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)                                         AR20110012601





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ABCMR Record of Proceedings (cont)                                         AR20110012601



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