IN THE CASE OF:	  

		BOARD DATE:	  27 March 2012

		DOCKET NUMBER:  AR20110017345 


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 his bad conduct discharge be upgraded to a general discharge.

2.  The applicant provides no statement or 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 military record shows he enlisted in the Regular Army, in pay grade E-1, on 28 February 1968, for 2 years.  He was advanced to pay grade E-2 on 28 June 1968.  He did not complete training and was not awarded a military occupational specialty. 

3.  On 31 July 1968, he was reported absent without leave (AWOL) and dropped from the Army rolls on 30 August 1968.  He was returned to military control on 14 October 1968.

4.  He was again reported AWOL on 1 December 1968 and dropped from the Army rolls on 16 December 1968.  He was returned to military control on or about 9 July 1969 and placed in confinement

5.  On 23 July 1969, he was convicted by a special court-martial for being AWOL from 1 December 1968 through 9 July 1969.  He was sentenced to confinement for 2 months and a forfeiture of $40.00 pay for 2 months.

6.  He was again reported AWOL on 23 September 1969.  He was returned to military control on 3 July 1973.  

7.  On 20 August 1973, he was convicted by a general court-martial for being AWOL from 23 September 1969 through 3 July 1973.  He was sentenced to 5 months in confinement and a bad conduct discharge.

8.  On 26 September 1973, the convening authority approved the sentence.

9.  On 19 October 1973, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

10.  General Court-Martial Order Number 1176, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 3 December 1973, shows the sentence to a bad conduct discharge and confinement at hard labor for 5 months were finally affirmed and the bad conduct discharge was ordered duly executed.

11.  There is no indication he petitioned the U.S. Court of Military Appeals for a review of his discharge.  

12.  Accordingly, on 17 December 1973, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 11, as a result of court-martial, in pay grade E-1.  He was credited with completing 8 months and 25 days of active service with 1,853 days of time lost.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provided that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review had to be completed and the sentence affirmed before it could be duly executed.

14.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, states a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

16.  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 change a court-martial 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 was convicted by special and general courts-martial of being AWOL for a total of 1,853 days.  On 17 December 1973, he was discharged pursuant to the sentence of his general court-martial and he was issued a bad conduct discharge after the sentence was affirmed.

2.  He provided no evidence to show his discharge is unjust.  There is no error or injustice apparent in his record.  There is also no evidence his courts-martial were unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to a general or a fully honorable discharge.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given his offenses and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency 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)                                         AR20110017345



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ABCMR Record of Proceedings (cont)                                         AR20110017345



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