BOARD DATE:	  27 March 2012

		DOCKET NUMBER:  AR20110018578 


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 that his Bad Conduct Discharge (BCD) be upgraded to a fully honorable discharge.

2.  The applicant states after he was discharged he appeared before a military review board in Philadelphia, Pennsylvania and on 30 August 1976 his military services was found to be under conditions other than dishonorable.  He states he was also awarded full use of the G.I. Bill.  Additionally, he states that he had 
2 1/2 years of honorable service and requests that his discharge be upgraded to a fully honorable discharge.

3.  The applicant provides a one-page letter explaining his application, a copy of a letter from the Veterans Administration granting him benefits, and copies of four educational diplomas.

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 enlisted in the Regular Army in Philadelphia, on 3 October 1969, for a period of 3 years and training as a cable splicer.  He completed basic training at Fort Bragg, North Carolina and was transferred to Fort Sill, Oklahoma and Sheppard Air Force Base Texas to undergo advanced individual training (AIT).

3.  He completed his AIT and was transferred to Vietnam, on 19 May 1970, for assignment to the 261st Signal Company.  He was advanced to the pay grade of E-3 on 13 April 1970.  

4.  On 26 January 1971, nonjudicial punishment (NJP) was imposed against the applicant for failure to go to his place of duty.

5.  On 17 February 1971, NJP was imposed against him for five specifications of failure to go to his place of duty.

6.  On 24 April 1971, he departed Vietnam and was transferred to Fort Huachuca, Arizona.

7.  On 19 July 1971, NJP was imposed against the applicant for feigning an illness and informing his superior that he was going on sick call and actually went to the dayroom to play pool, and for being disrespectful in language towards a superior noncommissioned officer.

8.  On 31 March 1972, he was convicted by a special court-martial of assaulting another Soldier with a club.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of $192.00 pay for 6 months, and a BCD.  He was transferred to the U.S. Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas to serve his confinement.

9.  On 17 August 1972, Special Court-Martial Order Number 51 issued by the USDB indicated that the applicant’s court-martial conviction had been affirmed and directed that his BCD be executed.

10.  On 28 August 1972, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 2 years, 5 months, and 19 days of active service and 160 days of lost time due to being in confinement.

11.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.  

12.  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.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a provides 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.

14.  Army Regulation 635-200, paragraph 3-7b, provides 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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

2.  The applicant’s contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense.  Accordingly, his punishment was not disproportionate to the offense for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.  

3.  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 nature of the applicant's misconduct and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  Additionally, the Board does not upgrade discharges simply for the purpose of qualifying individuals for employment or additional benefits.  As a result, clemency is not warranted in this case.

4.  The fact that the VA has granted the applicant benefits has been noted; however, it does not establish an error or injustice in regard to the character of service awarded by the Army.  The VA operates under its own separate laws and regulations.

5.  The available evidence does not show that the applicant applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.  

6.  Therefore, given the available evidence in this case, there appears to be no basis to grant the applicant an upgrade of his discharge based on clemency.  

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)                                         AR20110018578



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ABCMR Record of Proceedings (cont)                                         AR20110018578



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