IN THE CASE OF:	  

		BOARD DATE:	  8 May 2012

		DOCKET NUMBER:  AR20110021150 


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 to a general discharge under honorable conditions.

2.  The applicant states that when he served in the Regular Army (RA) he was given an opportunity to teach at a correctional facility.

	a.  He was young and did not fully understand what was expected of him; however, he did a good job for the Army while he was there.

	b.  He requests this information be taken into consideration in reviewing his application and adds that an upgrade of the character of his service will allow him to obtain health benefits through the Department of Veterans Affairs.

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

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.  A DD Form 214 shows the applicant had honorable RA service from 31 May 1968 through 28 April 1969.

3.  He reenlisted in the RA on 29 April 1969 for a period of 4 years.  At the time he was 18 years of age.

4.  In February 1972, the applicant was convicted at a special court-martial of two specifications of being absent without leave (AWOL) from his unit from 4 October to 5 November 1971 and 22 November 1971 to 31 January 1972.  On 6 March 1972, he was sentenced to forfeit $100.00 pay for 1 month and reduction to private (E-1).

5.  Headquarters, 101st Airborne Division (Airmobile), Fort Campbell, Kentucky, Special Court-Martial Order Number 16, dated 15 February 1973, shows the applicant was convicted at a special court-martial of four specifications of being AWOL from his appointed place of duty from 3 to 12 July 1972, 28 July to 
1 August 1972, 7 to 17 August 1972 and from 21 August to 30 October 1972. 

	a.  He was sentenced to forfeit all pay and allowances, to be confined at hard labor for 4 months, to forfeit $192.00 pay for 4 months, to be reduced to private (E-1), and to be discharged with a bad conduct discharge.

	b.  On 15 February 1973, the convening authority approved the sentence providing for a bad conduct discharge and reduction to private (E-1).  The service of the sentence to confinement at hard labor for 4 months was deferred on 
20 December 1972, and the deferment was rescinded.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

6.  A Headquarters, U.S. Army Judiciary, Office of The Judge Advocate General, Falls Church, Virginia, letter, dated 5 July 1973, shows the U.S. Court of Military Appeals denied the applicant's petition for a grant of review and he was informed of the order.

7.  Headquarters, 101st Airborne Division (Airmobile), Fort Campbell, Kentucky, Special Court-Martial Order Number 81, dated 9 July 1973, confirmed the 

applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, and the applicant having been placed on excess leave on 15 February 1973 pending completion of the appellate review, the sentence was ordered duly executed.

8.  The applicant's DD Form 214 shows he was discharged on 24 July 1973 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, with a bad conduct discharge, as a result of court-martial.

   a.  He completed 3 years, 2 months, and 17 days of net active service this period.

   b.  Item 30 (Remarks) shows (in part) he had 215 days lost under Title 10, U.S. Code, section 972.

9.  A review of item 38 (Record of Assignments) of the applicant's DA Form 20 (Enlisted Qualification Record) fails to show any evidence that he served as an instructor or facilitator at a personnel confinement facility.

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 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 3, 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.

	b.  Chapter 11 (Dishonorable and Bad Conduct Discharge), paragraph 11-2, provides that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of the appellate review and after such affirmed sentence had been ordered duly executed.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded because he was young and didn't fully understand what was expected of him; however, overall, he did a good job for the Army.

2.  A DD Form 214 shows the applicant completed a period of honorable active service from 31 May 1968 through 28 April 1969.

3.  Considering the applicant completed a prior period of honorable active service his contention that he was young and immature is not supported by the evidence of record.

4.  The applicant's trial by court-martial was warranted by the gravity of the offense for which he was charged.  His conviction and bad conduct discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

5.  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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

7.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care (and other benefits) should be addressed to the Department of Veterans Affairs or appropriate government agency.









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)                                         AR20110021150



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ABCMR Record of Proceedings (cont)                                         AR20110021150



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