IN THE CASE OF:
BOARD DATE: 7 August 2012
DOCKET NUMBER: AR20120002636
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).
2. The applicant states he was in a severe mental condition at the time and he did not understand the questions. He is sorry for what he committed and states that he paid his sentence. He also states he wishes to correct his discharge and continue his life. He wants to raise his children so that they can serve in the Army honorably.
3. The applicant provides sixteen support documents of which all but one are in Spanish.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 14 August 1974 for a period of 2 years. He was transferred to Fort Bliss, TX to undergo his one-station unit training as a Hawk Missile Crewman. He completed his training and remained at Fort Bliss for his first and only assignment. He was advanced to the pay grade of E-3 on 3 July 1975.
2. On 3 November 1975, nonjudicial punishment (NJP) under the provisions of
Article 15, Uniform Code of Military Justice (UCMJ) was imposed against him for sleeping on his guard post.
3. On 26 April 1976, he was convicted pursuant to his plea by a General Court-Martial of aggravated robbery of two Soldiers. He was sentenced to confinement at hard labor for 1 year, reduction to the pay grade of E-1, forfeiture of all pay and allowances, and a BCD.
4. On 9 December 1976, orders were published by Headquarters, U.S. Army Air Defense Center, Fort Bliss, announcing that the applicant's court-martial conviction had been affirmed and directed the applicant's BCD be executed.
5. Accordingly, on 16 September 1976, he was discharged pursuant to a duly affirmed court-martial conviction. He completed 1 year, 7 months, and 22 days of total active service with 161 days of time lost due to confinement.
6. 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.
7. Army Regulation 635-200, governs the policies and procedures for 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant an upgrade of his discharge when considering the nature of his offense.
2. Trial by court-martial was warranted by the gravity of the offense 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. The type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.
3. The applicant's court-martial was reviewed by the appropriate appellate authority and found to be legally sufficient to support the findings and sentence as approved by the convening authority. 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.
4. 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.
5. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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) AR20120002636
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ABCMR Record of Proceedings (cont) AR20120002636
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