IN THE CASE OF:	  

		BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20110025230 


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 undesirable discharge to an honorable discharge.

2.  The applicant states as a stupid, easily-led young man, he became involved with the wrong people and stole property while off base.  He has regretted his actions ever since, loves his country, and would do anything to help it.  He further states he is not looking for compensation, just an honorable discharge for his family.  He believes a less than honorable discharge is one of the biggest stains on one's life.

3.  The applicant provides a self-authored statement and 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.  The applicant enlisted in the Regular Army on 28 July 1959 at the age of 17.  His records show he completed training and he was awarded military occupational specialty 111.00 (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.  However, he held the rank/pay grade of private/E-1 at the time of separation.

3.  His record contains General Court-Martial Order Number 15 issued by Headquarters, U.S. Army Aviation Center, Fort Rucker, AL, dated 9 December 1960, which shows the applicant pled guilty and was found guilty of wrongfully appropriating property on four separate occasions in violation of the Uniform Code of Military Justice (UCMJ).  These orders also show he was sentenced to be discharged from the service with a bad conduct discharge (BCD) and to forfeit all pay and allowances.  The sentence was adjudged on 30 November 1960.

4.  On 9 December 1960, the sentence was approved.  The application of the forfeiture was deferred until the sentence was ordered into execution.  The record of trial was forwarded to the Judge Advocate General of the Army for review by a board of review.

5.  His record contains General Court-Martial Order Number 1 issued by Headquarters, U.S. Army Aviation Center, Fort Rucker, AL, dated 13 January 1961, which shows the applicant was convicted by a general court-martial on 9 December 1960 and sentenced to a BCD and forfeiture of all pay and allowances.  His sentence was affirmed and, Article 71c having been complied with, the sentence was duly executed.

6.  He was discharged on 18 January 1961 pursuant to his sentence by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), separation program number 292 (Other Than Desertion – Court-Martial) with an under other than honorable conditions character of service.  He completed 1 year, 4 months, and 14 days of creditable active service with 37 days of lost time.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

8.  Army Regulation 635-200 provides, in part, for the following characters of service:

	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.

9.  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.  Records show the applicant was over 18 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

2.  The available evidence shows he was convicted by a general court-martial.  The conviction and discharge were effected in accordance with applicable laws and regulations and his rights were fully protected.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.

3.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ 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.  The available evidence failed to establish a basis upon which clemency could be granted.  Therefore, there is no legal basis for granting the applicant's request for 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)                                         AR20110025230



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ABCMR Record of Proceedings (cont)                                         AR20110025230



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