IN THE CASE OF:	  

		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20120000135 


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 that his bad conduct discharge (BCD) be upgraded to an honorable discharge that will qualify him for government employment.

2.  The applicant states, in effect, that he is eligible for release from incarceration in 2013 and will need government employment and immediate income.  

3.  The applicant provides a partial copy of his DA Form 20 (Enlisted Qualification Record).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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 with a moral waiver on 13 January 1965 for a period of 3 years.  He completed basic training at Fort Jackson, South Carolina, advanced individual training as a field radio repairman at Fort Gordon, Georgia, and airborne training at Fort Benning, Georgia before being transferred to Vietnam on 1 August 1966. 

3.  He completed his tour in Vietnam on 21 July 1967 and was transferred to Fort Bragg, North Carolina.  On 12 October 1967, he was honorably discharged for the purpose of immediate reenlistment.  On 13 October 1967, he reenlisted for a period of 6 years.

4.  On 29 March 1968, nonjudicial punishment (NJP) was imposed against him for two specifications of failure to go to his appointed place of duty.

5.  On 29 May 1968, he was convicted by a special court-martial of being absent without leave (AWOL) from 1 April to 30 April 1968, from 13 May to 20 May 1968, failure to repair and breaking restriction.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.  

6.  On 17 January 1969, NJP was imposed against him for failure to go to his appointed place of duty (guard mount) and being AWOL from 2 January to 
3 January 1969.

7.  On 3 September 1968, he was convicted by a special court-martial of escaping from confinement and being AWOL from 10 to 30 June 1968.  He was sentenced to confinement at hard labor for 6 months, reduction to pay grade E-1 and a forfeiture of pay.

8. On 7 May 1969, he was convicted pursuant to his plea by a general court-martial for the wrongful possession of marijuana.  He was sentenced to confinement at hard labor for 2 years and a dishonorable discharge.  He was transferred to the United States Disciplinary Barracks at Fort Leavenworth, Kansas to serve his confinement.

9.  On 14 October 1969, the U.S. Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

10.  On 5 January 1970, he was discharged pursuant to a duly affirmed court-martial conviction.  He had served 3 years, 7 months, and 18 days of total active service and he had 464 days of lost time due to being AWOL and in confinement.

11.  On 2 February 1970, the Secretary of the Army, acting through the Army Clemency and Parole Board, directed that the applicant’s Dishonorable Discharge be changed to a BCD.

12.  At the time of his application to this Board the applicant was incarcerated in a Virginia Department of Corrections facility in Capron, Virginia.

13.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.

14.  Army Regulation 635-200, 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

15.  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.  Trial by 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 characterizes the misconduct for which the applicant was convicted.  Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.

2.  The applicant’s contentions and supporting document were considered.  However, they are not sufficiently mitigating to warrant relief when compared to the repeated nature and seriousness of his offense.

3.  Accordingly, his punishment was not disproportionate to the offense for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.  




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)                                         AR20120000135



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120000135



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1