IN THE CASE OF:	  

		BOARD DATE:  1 March 2012

		DOCKET NUMBER:  AR20110016451 


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 completed his sentence in 1985
* his maturity level has improved and he has also improved himself educationally
* he is not the person he used to be

3.  The applicant did not provide any additional 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 enlisted in the Regular Army on 8 March 1972.  He held military occupational specialty 63F (Recovery and Evacuation Specialist).  He served in Germany from 6 April 1972 to on or about 7 January 1973.

3.  He was awarded or authorized the National Defense Service Medal, Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 9 January 1973, he was convicted by a general court-martial of one specification of violating a general regulation by possessing a blade exceeding 3 inches in length and one specification of stealing by means of force from another individual, against his will, U.S. and German currency.  The Court sentenced him to a bad conduct discharge, confinement at hard labor for 1 year, a forfeiture of all pay and allowances, and a reduction to private/E-1.

5.  On 21 April 1973, the convening authority approved the sentence and except for the bad conduct discharge ordered it 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 1047, dated 2 November 1973, ordered the applicant restored to duty pending appellate review.

7.  On 9 May 1974, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  There is no indication the applicant petitioned the U.S. Court of Military Appeals for a review of his case.

9.  Headquarters, U.S. Army Infantry Center, Fort Benning, GA, General Court-Martial Order Number 36, dated 13 August 1974, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

10.  On 11 October 1974, the applicant was discharged from the Army 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, 4 months, and 13 days of creditable military service and he had 446 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.  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 immature at the time does not negate the fact that he was convicted by a general court-martial.  



3.  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)                                         AR20110016451



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ABCMR Record of Proceedings (cont)                                         AR20110016451



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