IN THE CASE OF:	  

		BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110016541 


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 was young and did not take life seriously at the time
* he was under the influence of alcohol and having severe mental issues
* he did not realize the ramifications of his actions
* the Army could have given him some counseling regarding his passive/aggressive behavior
* he needs medical and other benefits at this stage
* he was not approved for clemency during his confinement

3.  The applicant provides a DD Form 1479 (Prisoner Assignment and Clemency Board Action).

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 1 January 1953.  He was inducted into the Army of the United States at 18 years and 2 months of age on 16 March 1971 and he held military occupational specialty 13A (Field Artillery Basic). 

3.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on/for:

* 3 June 1972, being absent without leave (AWOL) on 2 June 1971
* 14 June 1971, being AWOL from 8 to 11 June 1971
* 31 August 1971, leaving his assigned place of duty (guard duty) without authority

4.  On 21 December 1971, he was convicted by a general court-martial of:

* two specifications of being AWOL from 1 to 15 September 1971 and 20 to 25 September 1971
* one specification of unlawfully striking Mrs. EF about the face with his hands
* one specification of wrongfully committing an indecent, lewd, and lascivious act with Mrs. EF by committing an assault

The Court sentenced him to a dishonorable discharge, a forfeiture of all pay and allowances, confinement at hard labor for 1 year, and a reduction to private/E-1.

5.  On 27 January 1972, the convening authority approved the sentence, and except for the dishonorable discharge, the sentence was ordered executed.  The record of trial was forwarded to the Judge Advocate General of the Army for appellate review.

6.  On 4 August 1972, 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 and confinement at hard labor for 10 months was affirmed. 

7.  On 8 December 1972, the U.S. Court of Military Appeals denied his petition for grant of review.  


8.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 1424, dated 11 December 1972, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

9.  The applicant was discharged from the Army on 3 January 1973 with an under other than honorable conditions discharge.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed a total of 5 months and 15 days of creditable military service and he had 491 days of lost time.

10.  He submitted a DD Form 1479, dated 25 September 1972, which shows members of his clemency board recommended remission of the sentence in excess of 9 months but the recommendation was denied.  Additionally, while confined, his initial diagnosis was that of a passive-aggressive personality, chronic, moderate, manifested by conflict with authority, anti-social behavior, obstructionism, and procrastination.

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 characters 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 offenses charged at the time.  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 2 months of age at the time of his enlistment and nearly 19 years of age at the time he committed his offenses.  There is no evidence his offenses were caused by his age or that he was any less mature than other Soldiers of the same age who successfully completed their military service.  Likewise, there is no evidence that he suffered from a mental condition that led him to commit his offenses. 

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.  

4.  Based on his overall record of indiscipline, 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)                                         AR20110016541



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ABCMR Record of Proceedings (cont)                                         AR20110016541



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