IN THE CASE OF:	  

		BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110020366 


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, an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states he was discharged because his gambling problem and compulsive gambling is recognized as a disease.

3.  The applicant provides no additional documents.

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 on 23 May 1973.  He was trained in, awarded, and served in military occupational specialty 71B (Clerk Typist).
3.  His record confirms that he twice accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the indicated offenses:

* 6 February 1974 - for twice failing to go to his appointed place of duty at the time prescribed on 1 and 4 February 1974
* 25 March 1974 - for failing to go at the time prescribed to his appointed place of duty on 21 March 1974

4.  On 16 May 1975, pursuant to his pleas, a General Court Martial (GCM) convicted the applicant of the following charges for violating the indicated Articles of the UCMJ:

* Charge I (2 specifications) - Article 86, for being absent without leave from 22 April through 21 October 1974 and from 19 November through 13 December 1974

* Additional Charge I (3 specifications) - Article 123, for falsely signing his name to another Soldiers checks on three separate occasions in the amounts indicated:  3 February 1975 ($90.00), 30 January 1975 ($35.00), and 29 January 1975 ($45.00)


* Additional Charge II - Article 121, for stealing merchandise from a local shopping plaza valued at $90.00

* Additional Charge III (4 specifications) - Article 123, for falsely signing his name to another Soldiers checks on four separate occasions in the amounts indicated:  19 February 1975 ($15.00); 21 February 1975 ($45.00), 22 February 1975 ($65.00), and 25 February 1975 ($57.00)

* Additional Charge IV (4 specifications) - Article 121, for stealing U.S. currency from the local federal credit union on the following dates in the amounts indicated:  19 February 1975 ($15.00), 21 February 1975 ($45.00), 22 February 1975 ($65.00), and 25 February 1975 ($57.00)

* Additional Charge V (5 specifications) - Article 123, for falsely signing his name to another Soldiers checks on five separate occasions in the amounts indicated:  30 January 1975 ($20.00); 5 February 1975 ($45.00), 7 February 1975 ($15.00), 9 February 1975 ($10.00), and 9 February 1975 ($15.00)

The sentence imposed by the military judge included confinement at hard labor for 1 year, forfeiture of all pay and allowances, and a bad conduct discharge (BCD).

5.  On 5 August 1975, the GCM convening authority approved the sentence.

6.  GCM Order Number 235, dated 22 February 1977, issued by Headquarters, United States Army Disciplinary Barracks, Fort Leavenworth, Kansas, directed, the guilty findings and sentence having been finally affirmed, that the sentence be duly executed.  On 22 April 1977, the applicant was discharged accordingly.

7.  The separation document (DD Form 214) issued to the applicant on the date of his discharge confirms he completed a total of 2 years, 6 months, and 10 days of creditable active military service.  It also shows that he was separated under the provisions of paragraph 11-2, Army Regulation 635-200, by reason of 
court-martial.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

	a.  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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

	c.  Chapter 11 of Army Regulation 635-200, in effect at the time, provided that an enlisted person 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his punitive discharge should be upgraded because he suffered from compulsive gambling which has been characterized as a disease.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms, pursuant to his pleas, a GCM convicted the applicant of multiple charges which resulted in his sentence that included a BCD. His trial by court-martial was warranted by the gravity of the offense for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulation and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  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 punishment imposed.  Given the applicant’s undistinguished record of service and absent any compelling mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency in the form of either a fully honorable or a general under honorable conditions discharge 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)                                         AR20110020366





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ABCMR Record of Proceedings (cont)                                         AR20110020366



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