BOARD DATE:	  7 August 2012

		DOCKET NUMBER:  AR20120001520 


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 to a general discharge.

2.  The applicant states:

* he tried to get his discharge upgraded in 1978, but never heard back from anyone
* his activity as an artillery crewman was second to none and he loved his job and being in the field
* his off duty activity as not good, but he paid the price and he is still doing so today
* he believes he earned at least a general discharge
* he begged the courts for retraining because he wanted to stay in the Army and retire as an Army Soldier

3.  The applicant provides:

* self-authored statements
* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)





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 20 January 1976.  He completed training and he was awarded military occupational specialty 13B (field artillery crewman).  The highest rank/grade he attained while on active duty was private (PV2)/E-2.

3.  A DA Form 4187 (Personnel Action), dated 8 June 1976, shows that on 6 June 1976, the applicant was apprehended by civil authorities for driving while intoxicated.  On 9 June 1976, the applicant was released to military authorities with a pending trial date.

4.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article15, Uniform Code of Military Justice (UCMJ) on:

* 29 July 1976, for unlawfully, knowingly, and intentionally possessing marijuana
* 16 December 1976, for being drunk and disorderly, using provoking words, and being disrespectful in language towards his superior commissioned and noncommissioned officers (NCO)
* 19 August 1977, for disrespectful behavior towards a superior commissioned officer
* 16 September 1977, for sleeping on post as a sentinel

5.  General Court-Martial Order Number 82, issued by Headquarters, VII Corps, dated 29 December 1977, shows the applicant was tried and found guilty of stealing from another Soldier by means of force and violence a Bulova quartz 
watch of a value of about $700.00.  He was sentenced to a bad conduct discharge, confinement at hard labor for 22 months, forfeiture of all pay and allowances, and reduction to the rank/grade to private (PV1)/E-1.
6.  General Court-Martial Order Number 414, issued by Headquarters, United States Disciplinary Barracks, Fort Leavenworth, KS, dated 20 July 1978, shows that only so much of the findings of General Court-Martial Order Number 82, as provided for a bad conduct discharge, forfeiture of all pay and allowances becoming due on and after the date of the convening authority's action, confinement at hard labor for 19 months, and reduction to PV1/E-1, was affirmed.

7.  On 19 October 1978, the applicant was separated with a bad conduct discharge.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 9 months, and 25 days of credible active service.  He had 332 days of time lost during the period 21 November 1977 through 18 October 1978.

8.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.

	a.  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.

	b.  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.

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.  The applicant's request for an upgrade of his bad conduct discharge was carefully considered and determined to lack merit.

2.  The evidence of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offense charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.

3.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

4.  After a review of his record of service, it is clear that his service did not meet the criteria for an honorable or a general discharge or any characterization of service other than the one he received.

5.  In view of the foregoing, there is an insufficient evidentiary basis for upgrading the applicant's 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)                                         AR20120001520



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ABCMR Record of Proceedings (cont)                                         AR20120001520



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