IN THE CASE OF:	


		BOARD DATE:  27 March 2012

		DOCKET NUMBER:  AR20110018196 


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 (BCD) be upgraded to a general discharge. 

2.  The applicant states, in effect, that he was suffering from alcoholism while in the U.S. Army, but never treated for this.  When he was not drunk he was a good Soldier.  This is shown on his personnel records.  An incident occurred in June 1964 that spiraled out of control and wrecked his life.  He tried to stay in the Army after his sentence was completed, but he was denied this opportunity.  He has been sober more than 43 years.  He is a productive member of his community and he requests that the character of his 1965 discharge be upgraded to general. He never knew that he could request an upgrade.  

3.  He provides:

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) ending on 12 November 1959 and 10 April 1965
* General Court-Martial Order Number 105, dated 14 November 1964
* DD Form 1477 (Prisoner's Progress Summary Sheet), 2 pages
* DD Form 1478 (Prisoner's Summary Continuation Sheet), 5 pages
* DD Form 1479 (Prisoner Assignment and Clemency Board Action), 3 pages
* PMG(K) Form Nr. 95 (Factual Data for Restoration, Clemency and Parole Review)
* Application for Restoration memoranda, dated 18 January and 6 May 1965
* Notarized copy of his social security card showing his name change and the same social security number used during his period of active service
* four character reference letters

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 records show he enlisted in the Regular Army (RA), in pay grade E-1, on 13 November 1957, for 3 years.  He completed basic and advanced training and he was awarded military occupational specialty 111.07 (Rifleman).  He was promoted to pay grade E-3 on 3 October 1958.  

3.  He was honorably discharged from active duty for the purpose of immediate reenlistment on 12 November 1959.  He reenlisted in the RA on 13 November 1959.

4.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on/for:

* 14 December 1963, dereliction in the performance of his duties
* 11 August 1964, indebtedness on a personal loan
*   3 September 1964, possession of alcoholic beverages in the barracks

5.  A Review of the Staff Judge Advocate memorandum stated:

	a.  On 13 November 1959, the applicant reenlisted for 6 years and an assignment to Fort Bragg, NC.  In June 1960, he travelled with his organization to Okinawa, Japan remaining stationed there until June 1962.  Upon his return to the United States, he was assigned to the 1st Airborne Battle Group, 327th Infantry, Fort Campbell, KY, where he remained.
	b.  He was promoted to the rank/grade of specialist four, which was the highest rank that he held.  He was reduced to pay grade E-3 for inefficiency on 
9 December 1960 and he was again reduced to pay grade E-2 for misconduct on 8 November 1962.  He was advanced again to pay grade E-3 on 3 May 1963, but he was reduced to pay grade E-2 for a civil conviction on 25 June 1963.  He again attained pay grade E-3 on 1 August 1963, but was once more reduced for to pay grade E-2 due to misconduct on 14 December 1963.  He was advanced to pay grade E-3 on 6 March 1964.

	c.  At the pre-trial interview, the applicant presented an average military appearance and appeared to be in good physical and mental condition.  His attitude and manner were sarcastic and bordered on insolence towards the interviewing officer.  Although he had ample money in his personal account, he had done nothing to repay the Soldier he stole money from.  He showed no signs of remorse or contrition for his conduct.

	d.  He had a "what's-in-it-for-me" attitude and though he stated he was interested in completing the rehabilitation program his sole motive in doing so was to avoid receiving a BCD.  He stated he would be willing to stay in the Army if he could serve somewhere else besides Fort Campbell.  In view of his extremely poor attitude and his repeated record of misconduct and inefficiency he was manifestly not a proper candidate for restoration to duty.

6.  On 2 October 1964, he was convicted pursuant to his pleas by a general court-martial of one specification of stealing money, the property of another Soldier, on or about 30 June 1964.  He was sentenced to be discharged with a BCD, confinement at hard labor for 3 years and 6 months, a forfeiture of all pay and allowances, and a reduction to pay grade E-1.  

7.  On 14 November 1964, the convening authority approved only so much of the sentence providing for a BCD, confinement for 1 year and 3 months, a total forfeiture of pay and allowance, and reduction to pay grade E-1.

8.  He provided copies of DD Forms 1477 and 1478, prepared in January 1965 which summarized his personal and military histories, which includes his evaluations, educational development, occupational development, and disposition.

9.  On 12 February 1965, the U.S. Army Board of Review affirmed the findings of guilty and the sentence.

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

11.  General Court-Martial Order Number 231, dated 29 March 1965, ordered the sentence duly executed.  

12.  On 10 April 1965, he was discharged under the provisions of Army Regulation 635-204, with a BCD in pay grade E-1.  He was credited with completing 4 years, 9 months, and 20 days of net service this period and 6 years, 9 months, and 21 days of total active service.  He was also credited with 1,192 days of time lost.  His DD Form 214 does not list any awards.  

13.  On 16 November 1977, he was advised that he was ineligible for the Special Discharge Review Program because of his BCD imposed by a general court-martial.

14.  He provided four character reference letters wherein the individuals stated their support of his request for an upgrade of his discharge.  The individuals also attested to the applicant's good character and sobriety of over 40 years.

15.  Army Regulation 635-204 (Personnel Separations Dishonorable and BCD), in effect at the time, set forth the basic authority for the separation of enlisted personnel as a result of court-martial.  Paragraph 1(a) of the regulation stated that an enlisted person would receive a BCD pursuant only to an approved sentence of a court-martial imposing a BCD.  The appellate review must be completed and the affirmed sentence ordered duly executed.

16.  Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3-7, currently in effect, 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.

17.  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 applicant's contentions and the documentation he submitted were carefully considered.  However, the evidence of record shows he was punished under Article 15 on three occasions for misconduct and inefficiency.  He was also convicted by a general court-martial of stealing the property of another Solder.  On 10 April 1965, he was discharged pursuant to the sentence of a general court-martial and issued a BCD after the conviction and sentence were affirmed.

2.  Trial by court-martial 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 characterized the misconduct for which he was convicted.

3.  There is no evidence he was suffering from alcoholism at the time.  Absent evidence which would indicate that he was suffering from a condition that was so severe that he could not tell right from wrong and adhere to the right this issue does nothing to demonstrate an injustice in the issuance of the BCD.  During a pre-trial interview it was determined that his extremely poor attitude and repeated record of misconduct and inefficiency demonstrated he was not a proper candidate for restoration to duty.

4.  He has not provided sufficient evidence or argument to show his BCD should be upgraded to a general discharge.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.

5.  Any redress by the ABCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given his offense 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)                                         AR20110018196



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ABCMR Record of Proceedings (cont)                                         AR20110018196


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