IN THE CASE OF:  

		BOARD DATE:  22 March 2012

		DOCKET NUMBER:  AR20110019242 


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 (BCD).

2.  The applicant states he won an appeal of his court-marital and was released from jail.  He states he was paid while he was incarcerated for 9 months in 1971. 
He wants his discharge upgraded for eligibility for Department of Veterans Affairs benefits.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of this application.

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 shows he enlisted in the Regular Army with a moral waiver on 19 February 1970 for a period of 3 years.  He completed the required training and was awarded military occupational specialty 81C (Drafting).  Pay grade E-2 is the highest grade he attained while serving on active duty.

3.  His service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions for the offenses indicated:

	a.  on 26 August 1970, for misconduct;

	b.  on 17 October 1970, for being absent without leave (AWOL); and

	c.  on 25 January 1971, for being AWOL from 14 January 1971 to 16 January 1971 and failing to go to his appointed place of duty on 18 January 1971.

4.  The applicant's NJP's for 26 August 1970 and 17 October 1970 are not found in his military records.

5.  On 12 October 1971, a general court-martial (GCM) found the applicant guilty of violating Articles 86 and 121 of the UCMJ as follows:

* two specifications of wrongfully appropriating a 1967 Volkswagen, the property of another individual 
* one specification of stealing a 1968 Ford Torino, the property of another Solider
* one specification of being AWOL from 2 April 1971 through 10 June 1971

6.  The resulting GCM sentence was a reduction in grade, confinement at hard labor for 2 years, and a BCD.

7.  On 28 June 1972, the U.S. Army Court of Military Review affirmed the findings and sentence.

8.  On 14 August 1972, the applicant was discharged under the provisions of paragraph 11-1b, Army Regulation 635-200 (Personnel Separations), with a separation program number (SPN) code of 292.  Army Regulation 635-5 (Separation Documents), in effect at the time, showed that SPN code 292 indicated separation of enlisted personnel by reason of "other than desertion (courts-martial)."  The DD Form 214 he was issued at the time shows he received an under conditions other than honorable character of service and a BCD Certificate.  He completed a total of 1 year and 4 months of creditable service.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 11-1, in effect at that time, stated that an enlisted person would be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial imposing a BCD.

11.  Army Regulation 635-200, 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.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his BCD to afford him veterans' benefits has been carefully considered.  However, the ABCMR does not upgrade discharges for the sole purpose of enabling an individual to obtain benefits.

2.  The trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which he was convicted.

3.  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 seriousness of his criminal offenses and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.

4.  Based on his misconduct, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general discharge.

5.  In view of the above, there is no basis for granting the applicant's requested relief.

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 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)                                         AR20110019242



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ABCMR Record of Proceedings (cont)                                         AR20110019242



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