IN THE CASE OF:	  

		BOARD DATE:  19 June 2012

		DOCKET NUMBER:  AR20120000144 


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 was recently denied the purchase of a firearm
* He joined the Army at a young age to help support himself and his family
* When his first child was born, he requested leave but he was denied
* He was then involved with the wrong crowd and left in an absent without leave (AWOL) status
* He was caught and placed in the stockade but he escaped; when he was caught, he was convicted by a general court-martial
* At the time, he was told he would receive an Article 15, confined, and reduced 
* He does not condone his actions; however, he was young and naive
* He loves his country and has been a law-abiding citizen

3.  The applicant provides a court order authorizing a name change. 

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 born on 19 August 1940 and enlisted in the U.S. Army Reserve (USAR) at 17 years and 6 months of age on 5 February 1958.

3.  He entered active duty for training (ACDUTRA) on 8 June 1958 and completed the required training for military occupational specialty 550.00 (Supply Handler).  He was honorably released from ACDUTRA on 7 December 1958 to the control of the USAR.

4.  He enlisted in the Regular Army (RA) at nearly 19 years of age on 27 July 1959.  He was later assigned to the 2nd Battalion, 18th Artillery, Fort Lewis, WA.

5.  On 26 July 1960, he was convicted by a summary court-martial of stealing combat boots, underwear, and shorts, the property of another Soldier.  The Court sentenced him to a reduction to private/E-1, confinement at hard labor for 30 days, and a forfeiture of $43.00 pay.  The convening authority approved his sentence on 29 July 1960.

6.  On 19 October 1960, he pled guilty and was convicted of one specification of being AWOL from 15 to 17 August 1960, one specification of stealing an automobile, and one specification of escaping from lawful confinement.  The Court sentenced him to confinement at hard labor for 2 years, a forfeiture of $40.00 pay per month for 2 years, and a bad conduct discharge.  

7.  On 26 October 1960, the convening authority approved a lesser sentence of confinement at hard labor for 18 months, a forfeiture of $40.00 pay per month for 18 months, and a bad conduct discharge 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.

8.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 27, dated 10 January 1961, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

9.  He was discharged from the Army on 3 February 1961.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-204 (Personnel Separations: Dishonorable & Bad-Conduct Discharge) as a result of court-martial, with an under other than honorable conditions discharge.  It also shows he completed 1 year and 18 days creditable active service during this period and he had 173 days of total lost time.

10.  Army Regulation 635-204 then in effect set forth the basic authority for the separation of enlisted personnel as a result of court-martial.  It stated that an enlisted person would be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial imposing dishonorable discharge.  The appellate review must be completed and the affirmed sentences ordered duty executed.  An enlisted person would be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct 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.

12.  Army Regulation 635-200 (Personnel Separations), 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.  Additionally, 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.  

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, which included automobile theft.  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.  Although he was 17 years and 6 months of age when he enlisted in the USAR, he was nearly 19 years of age when he enlisted in the RA and 20 years of age when he committed his offenses.  More importantly, there is no evidence that shows his actions were caused by his age or that he was any less mature than other Soldiers of the same age who successfully completed their service.

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 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)                                         AR20120000144





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ABCMR Record of Proceedings (cont)                                         AR20120000144



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