IN THE CASE OF:	  

		BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20120003227 


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 (BCD) to honorable.

2.  The applicant states he presented information regarding ineffective radar guidance related to the Redeye system and provided a solution to the problem at a board of inquiry at his discharge hearing.  The board members liked his idea and told him they would direct it to the U.S. Army's Strategic Management and Innovation Division's suggestion community.

	a.  The board members offered him the opportunity to remain on active duty; however, he declined.

	b.  He was then told he would be transferred to the inactive Reserve and he would receive an honorable discharge after a period of 5 years.

	c.  He adds that he has tried to obtain copies of his Army records, but has been told that his records were lost or destroyed in a fire.

3.  The applicant provides no additional evidence.

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 5 May 1969 for a period of 2 years.

3.  On 21 April 1971 pursuant to the applicant's plea at a general court-martial, he was convicted of being absent without authority from 4 March 1970 to 5 March 1971.  He was sentenced to forfeiture of all pay and allowances, confinement at hard labor for 10 months, reduction to pay grade E-1, and a BCD.

4.  The Record of Trial by General Court-Martial reviewed by the Staff Judge Advocate, Headquarters, U.S. Army Air Defense Center and Fort Bliss, Fort Bliss, Texas, on 24 May 1971, shows the applicant was called to the stand for a sworn statement and that he testified.

	a.  The record of trial fails to show any evidence that the applicant offered information regarding the Redeye system.  There is also no evidence he was offered the opportunity to remain on active duty or to transfer to the inactive Reserve in order to receive an honorable discharge after a period of 5 years.

	b.  The applicant was provided a copy of the record of trial in his case and advised of his right to submit material to the convening authority in explanation or rebuttal of matters.  The applicant declined the opportunity to do so.  Both the applicant and his defense counsel signed the document on 28 May 1971.

5.  On 28 May 1971, the convening authority approved the applicant's sentence, except the part extending to a BCD, and ordered it executed.  He also directed that the record of trial be forwarded to the Judge Advocate General of the Army for review by the U.S. Court of Military Review.

6.  On 16 August 1971, the Clemency and Parole Board at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, reviewed the applicant's case and sentence.  The board recommended no clemency and the recommendation was approved by order of the Secretary of the Army on 19 August 1971.

7.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 1205, dated 28 September 1971, confirmed the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, the sentence was ordered duly executed.

8.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged with a BCD on 18 October 1971 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1b, as a result of court-martial.

	a.  He completed 10 months and 8 days of net active service and he accrued 419 days of lost time under Title 10, U.S. Code, section 972.

	b.  It also shows in:

* item 14 (District, Area Command, or Corps to Which Reservist Transferred) – "NA" [not applicable]
* item 16 (Terminal Date of Reserve/Universal Military Training and Service Obligation) – "NA" [not applicable]

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

	a.  Chapter 11 (Dishonorable and BCD), in effect at the time, provided that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial after completion of the appellate review and after such affirmed sentence had been ordered duly executed.

	b.  Chapter 3, 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.

	c.  Chapter 3, 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.

10.  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 contends that his BCD should be upgraded because he was told he would be transferred to the inactive Reserve and he would receive an honorable discharge after a period of 5 years.

2.  There is no evidence of record and the applicant provides insufficient evidence that supports his contention that he would be transferred to the inactive Reserve and receive an honorable discharge after a period of 5 years.

	a.  Records show the applicant was discharged from the Army with a BCD.  As a result, he no longer had a Reserve or military service obligation.

	b.  Accordingly, his DD Form 214 shows he was not transferred to the inactive Reserve.

3.  The applicant's trial by court-martial was warranted by the gravity of the offense for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations and his rights were protected throughout the court-martial process, including his appeal.

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 were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is no basis for granting the applicant's request.



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 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)                                         AR20120003227



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120003227



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1