IN THE CASE OF:	  

		BOARD DATE:	 12 July 2012 

		DOCKET NUMBER:  AR20110025265 


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.  He states he is homeless and needs help with his diabetes.  He states he was a good Soldier and would have remained in the military if he could have. 

3.  He provides no additional documentary 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.  His military records show he enlisted in the Regular Army on 30 May 1972.  He was awarded the military occupational specialty of 11B (Light Weapons Infantryman).  The highest rank/grade he held was private/E-2.

3.  He accepted nonjudicial punishment:

* on 1 February 1973, for being absent from his unit from 22 to 23 January 1973
* on 6 March 1973, for being absent from his unit from 2 to 5 March 1973
* on 23 March 1973, for disobeying a lawful order and being disrespectful in language to his superior noncommissioned officer
* on 7 May 1973, for being absent from his appointed place of duty from 13 to 27 April 1973
* on 25 July 1973, for three times being absent from his appointed place of duty

4.  A Review of the Staff Judge Advocate document, dated 8 November 1974, indicates the applicant was previously convicted by a special court-martial on 31 August 1973 for eight failures to repair, breaking restriction, 6 days of absent without leave (AWOL), failure to obey an order from an officer, and communicating a threat to an officer.  

5.  Special Court-Martial Order Number 266, Headquarters, Fort Carson and 4th Infantry Division, shows that on 10 October 1974, pursuant to his pleas of guilty, he was convicted of:

* being AWOL from 7 January 1974 to 1 July 1974
* assault and battery

The court sentenced him to a bad conduct discharge, 3 months confinement, and forfeiture of $175 pay per month for 3 months.

6.  On 18 December 1974, the Army Military Court of Review affirmed the court-martial's findings and sentence.

7.  Special Court-Martial Order Number 119, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, dated 4 March 1975, shows the sentence to bad conduct discharge, forfeiture of $175 pay per month for 3 months, forfeitures to apply to pay becoming due on or after the date of the convening authority's action, confinement at hard labor for 3 months, adjudged on              10 October 1974, as promulgated in Special Court-Martial Order Number 266 was affirmed pursuant to Article 66.  By action of the Commandant, U.S. Disciplinary Barracks, dated 11 December 1974, the unexecuted portion of the sentence to confinement at hard labor was suspended effective 20 December 1974, for 1 month, with provisions for automatic remission.  It shows the appellate review was completed and the sentence, as thus modified, was ordered executed.
8.  Accordingly, on 18 March 1975, the applicant was discharged with an under other than honorable conditions characterization of service and given a Bad Conduct Discharge Certificate.  The DD Form 214 he was issued shows he completed 1 year, 7 months, and 28 days of active service for this period.  This form shows he had 441 days of time lost.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic policy for the separation of enlisted personnel.  Paragraph 11-2 provided that a Soldier would be given a bad conduct discharge 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.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

11.  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 received nonjudicial punishment on five occasions.  He had 441 days time lost.  He was given a bad conduct discharge pursuant to the approved sentence of a special court-martial for:

* being AWOL from 7 January 1974 to 1 July 1974
* assault and battery
2.  The appellate review was completed and the affirmed sentence ordered executed.  Conviction and discharge were effected in accordance with applicable laws and regulations in effect at the time, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

4.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to an honorable or a general 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 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)                                         AR20110025265



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ABCMR Record of Proceedings (cont)                                         AR20110025265



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