BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110023241 


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 feels his time in Fort Leavenworth, KS, was unjust due to his experience with his induction into the Army of the United States
* he was unfit for induction due to a heart murmur, but the military doctor approved his induction
* he made a decision to leave due to racial issues at the time
* he thought it was the best he could do to deal with the situation

3.  The applicant provides no additional evidence.

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 underwent a physical in connection with his induction and he was found medically qualified for induction.  He was inducted into the Army of the United States on 14 February 1968.  He was assigned to Fort Gordon, GA, for training.

3.  On 10 September 1968, he pled guilty and was convicted by a special court-martial of three specifications of being absent without leave (AWOL) from 12 March to 7 May 1968, from 17 May to 6 July 1968, and from 7 to 9 August 1968.  The court sentenced him to confinement at hard labor for 5 months and a forfeiture of $60.00 pay per month for 5 months.

4.  On 12 September 1968, the convening authority approved a lesser sentence by suspending the confinement and forfeiture for a period of 5 months.

5.  On 7 April 1969, he pled guilty and was convicted by a special court-martial of one specification of being AWOL from 16 October 1968 to 12 March 1969.  The court sentenced him to confinement at hard labor for 6 months and a forfeiture of $70.00 pay per month for 5 months.  The convening authority approved the sentence on 9 April 1969.

6.  On 22 April 1970, he pled guilty and was convicted by a general court-martial of one specification of being AWOL from 22 June 1969 to 9 February 1970.  The court sentenced him to a bad conduct discharge, a forfeiture of all pay and allowances, and confinement at hard labor for 9 months.

7.  On 5 August 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.

8.  Also on 5 August 1970, he pled guilty and was convicted by a special court-martial of two specifications of being AWOL from 4 May to 2 June 1970 and from 23 to 25 June 1970 and one specification of escaping from confinement.  The court sentenced him to confinement at hard labor for 4 months and a forfeiture of $50.00 pay per month for 4 months.  The convening authority approved the sentence on 17 August 1970.

9.  On an unknown date between 17 August and 27 November 1970, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

10.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 1159, dated 27 November 1970, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

11.  The applicant was discharged from the Army on 18 January 1971 with an under other than honorable conditions character of service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed a total of 2 months and 4 days of creditable military service and he had 1,007 days of lost time.

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.

13.  Army Regulation 635-200 (Personnel Separations) prescribes the types of characterization of service or description of separation.

	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 offenses 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 had undergone an induction physical and he was found medically qualified for induction.  There is no evidence that his extensive history of AWOL was caused by a heart murmur.  Likewise, there is no evidence that he suffered from any condition that led him to commit his offenses.

3.  He 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 was ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

4.  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 rendered 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 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)                                         AR20110023241



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ABCMR Record of Proceedings (cont)                                         AR20110023241



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