IN THE CASE OF:	  

		BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110021745 


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 went to his chain of command at the time to explain the situation with his dad and told his commanding officer he would fly home to see his dad and come back
* he was told to go home and that he would be put in for a hardship discharge
* while home, he called the Military Police station several times but he was told they had no paperwork on him
* he was surprised when Federal agents came to his work place and took him away
* he never received his paperwork when he got out of Fort Leavenworth
* he tried to reenter the Army 2 months after his dad passed away at age 57, but he could not
* he has been out of trouble since his discharge with a good job, a family and children, and will turn 65 soon

3.  The applicant provides:

* letters, dated 5 April 1976 and 5 November 1975, grating him clemency
* Certificate of Full Pardon
* Application for Review of Discharge 
* letter from the Veterans Administration
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 inducted into the Army of the United States on 21 August 1967 and he held military occupational specialty 65A (Section Hand).  He was assigned to Fort Dix, NJ.

3.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 15 September 1967, being absent without leave (AWOL) from 10 to 13 September 1967
* 9 October 1967, being AWOL from 23 September to 2 October 1967
* 15 December 1967, being AWOL from 22 October to 27 November 1967

4.  On 8 February 1968, he pled guilty and he was convicted by a special court-martial of one specification of being AWOL from 21 December 1967 to 19 January 1968.  The court sentenced him to confinement at hard labor for 2 months and a forfeiture of $60.00 pay per month for 2 months.  The convening authority approved his sentence on 15 February 1968.

5.  On 29 May 1968, he again pled guilty and he was convicted by a special court-martial of one specification of being AWOL from 25 March to 6 May 1968. The court sentenced him to confinement at hard labor for 6 months and a forfeiture of $60.00 pay per month for 6 months.  The convening authority approved his sentence on 31 May 1968.

6.  On 27 April 1973, he was convicted by a general court-martial of two specifications of AWOL from 15 to 24 July 1969 and 13 August 1969 to 31 May 1973.  The Court sentenced him to confinement at hard labor for 6 months and a bad conduct discharge.  The convening authority approved his sentence on 31 May 1973 and except for the bad conduct discharge, he ordered it executed.  Additionally, he ordered the record of trial forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

7.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 1077, dated 9 November 1973, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

8.  He was discharged from the Army on 4 January 1974.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations) as a result of court-martial, with an under other than honorable conditions discharge.  It also shows he completed 1 year, 1 month, and 20 days of creditable active service during this period and he had 1,789 days of total lost time.

9.  On 5 April 1976, he was notified by the Office of the Adjutant General that he was awarded a clemency discharge pursuant to Presidential Proclamation 4313, dated 16 September 1974.  

10.  Accordingly, he was issued a Full Pardon and a DD Form 215 (Correction to DD Form 214) that shows he was issued a DD Form 1953A (Clemency Discharge Certificate).  

11.  Army Regulation 635-200, in effect at the time, set 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

	b.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows his trial by general 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 characterized the misconduct for which the applicant was convicted.  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.  The applicant had already been issued a clemency discharge. 

2.  The applicant's contentions regarding mistreatment by his commanding officer and the illness of his father relate to evidentiary matters which could have been raised or adjudicated in the court-martial appellate process, and furnish no basis for re-characterization of the discharge.  There would have been many other legitimate ways for the applicant to help or be present with his father had he chosen them, but he chose to go AWOL on seven different occasions.  

3.  After a careful review of the applicant’s entire record of service, including his first enlistment, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, he is not entitled to an upgrade of his discharge to a general or an honorable 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 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)                                         AR20110021745



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110021745



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1