IN THE CASE OF:	  

		BOARD DATE:  23 May 2012

		DOCKET NUMBER:  AR20120000902 


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 upgrade of his bad conduct discharge (BCD) to a general discharge.

2.  He states his discharge should be upgraded based on his post-service conduct.  

3.  The applicant provides his DD Form 214 (Report of Separation from the Armed Forces of the United States) and a court document.  

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 military records are not available to the Board.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

3.  The applicant enlisted in the Regular Army on 13 February 1950.  

4.  His WD AGO Form 24A (Service Record) indicates he was absent without leave (AWOL) from 12 to 15 January 1951. 

5.  On 26 March 1951, he was convicted by a summary court-martial of being AWOL from 1 to 20 March 1951.  He was sentenced to a forfeiture of $58.00 of his pay and to perform hard labor without confinement for 45 days.

6.  On 10 April 1951, he was convicted by a summary court-martial of being AWOL from 3 to 6 April 1951.  He was sentenced to a forfeiture of $58.00 of his pay and to perform hard labor without confinement for 7 days.

7.  His WD AGO Form 24A also indicates he was AWOL from 2 to 3 May 1951.

8.  On 16 May 1951, he was convicted contrary to his pleas by a special court-martial of the following offenses:

* wrongfully, unlawfully, and falsely having in his possession with the intent to defraud military authorities a certain instrument purporting to be a furlough order, knowing the same to be unauthorized
* wrongfully and without authority wearing upon his uniform the insignia of the grade of corporal
* with intent to deceive, officially stating to a first lieutenant that he was Corporal M. G. M., which statement was known by him to be false

9.  He was sentenced to a BCD, confinement at hard labor at such place as the proper authority would direct for 6 months, and a forfeiture of $55.00 pay for 6 months.

10.  On 23 May 1951, the court-martial convening authority approved the sentence, but so much of the sentence as pertained to a forfeiture was reduced to a forfeiture of $53.00 pay per month for 6 months.

11.  On 2 July 1951, the authority exercising general court-martial jurisdiction approved the sentence as modified by the convening authority.  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.  

12.  On 30 August 1951, the Office of The Judge Advocate General affirmed the findings of guilty and the sentence.

13.  On 23 October 1951, the BCD was ordered executed.

14.  He was discharged on 7 November 1951 under the provisions of Army Regulation 615-364 (Enlisted Personnel:  Dishonorable and BCD) as a result of court-martial.  He completed 1 year, 2 months, and 12 days of creditable active service with 183 days of time lost.

15.  On 13 November 1953, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.  

16.  On 19 January 2012, the applicant filed a claim against the President of the United States and the Secretary of the Army for correction of his military records.

17.  References:

	a.  Army Regulation 615-364, in effect at the time, set forth the basic authority for the separation of enlisted personnel for as a result of a dishonorable and bad conduct discharge.  It states that an enlisted person will be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial imposing a BCD.

	b.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel.  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.

   c.  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’s contention regarding his post-service conduct is acknowledged.  However, good post-service conduct alone is not normally a basis for upgrading a discharge.

2.  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. 

3.  His reconstructed military service record revealed he was convicted by a summary court-martial on two separate prior occasions.

4.  Based on the seriousness of the misconduct for which he was convicted, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant has not provided other evidence of post-service conduct that would support relief as a matter of equity.  

5.  Therefore, there is no basis for granting his requested 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 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)                                         AR20120000902





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120000902



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1