IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110019101 


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.

2.  The applicant states:

* he was young (19 years old) at the time and he was unable to adjust to military life
* his mother was in bad health and he was needed at home
* he served for 11 months and he was sentenced without pay
* he is clean and fully rehabilitated now
* it has been 40 years since his discharge 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a Bad Conduct Discharge Certificate.

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 7 December 1949.  He was inducted into the Army of the United States at 19 years and 6 months of age on 9 July 1969 and he held military occupational specialty 95B (Military Police). 

3.  On 8 November 1969, he departed his Fort Hood, TX, unit in an absent without leave (AWOL) status and on 7 December 1969, he was dropped from the Army rolls as a deserter.  He returned to military control on 28 October 1970 and he was placed in pretrial confinement. 

4.  On 10 December 1970, in accordance with his plea, he was convicted by a general court-martial of one specification of being AWOL from 8 November 1969 to 29 October 1970.  The Court sentenced him to a bad conduct discharge, forfeiture of pay and allowances, and confinement at hard labor for 11 months.

5.  On 31 December 1970, the convening authority approved the sentence, and except for the bad conduct 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 19 March 1971, the U.S. Army Court of Military Review affirmed the approved findings of guilty.  

7.  There is no indication he petitioned the U.S. Court of Military Appeals for grant of review.  

8.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 551, dated 3 May 1971, 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 24 May 1971 with an under other than honorable conditions discharge and he was issued a Bad Conduct Discharge Certificate.  His DD Form 214 shows he completed a total of 3 months and 29 days of creditable military service and he had 563 days of lost time.

10.  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.

11.  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 offense 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 19 years and 6 months of age at the time of his induction and nearly 20 years of age at the time he committed his offense.  There is no evidence his offense was caused by his age or that he was any less mature than other Soldiers of the same age who successfully completed their military service. 

3.  Likewise, there is no evidence that he had any family issues or that he addressed such issues with his chain of command.  There would have been many other avenues to address the alleged issues had he chosen to use them.  Furthermore, the Army has never had a policy wherein a character of service is upgraded due to passage of time.

4.  The applicant 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.  

5.  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)                                         AR20110019101





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ABCMR Record of Proceedings (cont)                                         AR20110019101



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