BOARD DATE:	  10 January 2012

		DOCKET NUMBER:  AR20110014002 


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 to a general discharge. 

2.  The applicant states he was young at the time and he wanted to serve his country.  The stress got to him.  He was anxious.  He also states, in effect, he had insufficient counsel. 

3.  The applicant did not provide any evidence.

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 was born on 11 February 1955 and enlisted in the Regular Army at 18 years and 3 months of age on 29 May 1973.  He held military occupational specialty 24B (Hawk Continuous Wave Radar Mechanic). 

3.  He served in Germany from 7 January 1974 to 24 March 1975.  He was awarded or authorized the National Defense Service Medal and Expert Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 2 July 1974, he was convicted by a general court-martial in accordance with his plea of one specification of committing sodomy against a German national without her consent.  The Court sentenced him to a bad conduct discharge, confinement at hard labor for 3 years, a forfeiture of $250.00 pay per month for 36 months, and a reduction to private/E-1.

5.  On 18 August 1974, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 3 years, and forfeiture of pay, but the portion adjudging confinement at hard labor in excess of 9 months and forfeiture of pay in excess of 9 months was suspended until 2 April 1975, and except for the bad conduct discharge, the sentence was ordered executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 131, dated 31 January 1975, ordered the applicant restored to duty pending appellate review.

7.  On 30 May 1975, the U.S. Army Court of Military Review affirmed the approved findings of guilty and only so much of the sentence as provide for a bad conduct discharge, confinement at hard labor for 3 years (as suspended), and forfeiture of $250.00 pay per months for 36 months (as suspended).

8.  The applicant was advised of his right to petition the U.S. Court of Military Appeals for a review of his case but he failed to do so. 

9.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 40, dated 2 September 1975, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

10.  The applicant was discharged from the Army on 30 September 1975 with an under other than honorable conditions characterization of service.  His DD Form 214 (Report of Separation from Active Duty) shows he completed a total of 1 year, 5 months, and 20 days of creditable military service and he had 312 days of lost time.

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 (Personnel Separations) provides for the following characterization of service: 

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial which was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes 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.  The applicant was nearly 18 years and 3 months of age at the time of his enlistment and nearly 19 years of age at the time he committed his offense.  There is no evidence his offense was caused by his age or that he was any less mature than other Soldiers of the same age who successfully completed their military service.

3.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.  The fact that he thinks he was young at the time does not negate the fact that he was convicted by a general court-martial or erase his crime.  Additionally, he does not provide any evidence to support his contention that he was given insufficient counsel

4.  Based on his overall record, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of 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)                                         AR20110014002



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ABCMR Record of Proceedings (cont)                                         AR20110014002



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