IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110017654 


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, that his Bad Conduct Discharge (BCD) be upgraded to an honorable discharge.

2.  The applicant states “I put in for punitive discharge before court-martial under honorable conditions.”

3.  The applicant provides no 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.  On 13 August 1970, the applicant enlisted in the Regular Army and he completed training as a helicopter repairman.  He arrived in Vietnam on 14 April 1971 and was promoted through the ranks to pay grade E-4.

3.  On 21 November 1971, the applicant was convicted, pursuant to his pleas, by a general court-martial of wrongfully appropriating and damaging a UH-1H helicopter.  He was sentenced to the following:

* BCD
* confinement at hard labor for 9 months
* reduction to pay grade E-1
* A forfeiture of all pay and allowances

4.  His record contains a document indicating that after he was advised of the disadvantage of a punitive discharge, he instructed his defense counsel that he wanted to express his desire to receive a punitive discharge.

5.  On 10 February 1972, the convening authority approved the sentence, but the execution of that portion in excess of a BCD, confinement at hard labor for 2 months, a forfeiture of all pay and allowances, and reduction to the pay grade of E-1 was suspended until 15 May 1972, at which time, unless the suspension was sooner vacated, the suspended portion would be remitted without further action.

6.  The applicant returned to the United States on 13 April 1972.

7.  General Court-Martial Order Number 39, issued by Headquarters, 9th Infantry Division, Fort Lewis, WA, dated 18 October 1972, noting that the sentence had been finally affirmed, ordered the sentence executed.  The applicant had served that portion of the sentence pertaining to confinement.

8.  On 26 October 1972, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, as a result of a duly reviewed and affirmed general court-martial conviction.  He completed 2 years, 2 months, and 14 days of net active service this period with the issuance of a BCD.

9.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that 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 modify the severity of the punishment imposed.



10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 11 of the regulation in effect at the time states that a member 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.

   b.  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.
   
   c.  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's contentions have been noted.  

2.  His records show he was discharged with a BCD as a result of a duly reviewed and affirmed general court-martial conviction and he has provided no evidence to show the type of discharge he received was erroneous or unjust.

3.  Based on his overall record of service he did not serve honorably or under honorable conditions.  The BCD he received appropriately characterizes his service and it is not severe considering the nature of his offenses.

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 the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, the applicant’s request should be denied.


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)                                         AR20110017654



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ABCMR Record of Proceedings (cont)                                         AR20110017654



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