IN THE CASE OF:	  

		BOARD DATE:	    6 September 2012

		DOCKET NUMBER:  AR20120003365 


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 to an honorable discharge.

2.  He states he was 18 years old when he was drafted and the idea of being told what, when, and how to do things was more than he could handle.  At that rebellious time in his life he could not align himself to the Army way of life so he went absent without leave (AWOL).  He did, however, turn himself in to authorities at Fort Campbell, KY. 

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and six letters of support.

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.  His military records show he was inducted into the Army on 17 March 1969 at the age of 20.  He did not complete basic training.

3.  Special Court-Martial Order Number 292, Headquarters, U.S. Army Garrison Troop Command, shows that on 21 August 1969, pursuant to his pleas of guilty, he was convicted of:

* being AWOL during the period on or about 23 March to on or about 29 March 1969
* being AWOL during the period on or about 30 March to on or about 14 July 1969

4.  General Court-Martial Order Number 29, Headquarters, U.S. Army Training Center and Fort Campbell, shows that on 19 November 1970, pursuant to his pleas of guilty, he was convicted of being AWOL during the period of on or about 13 September 1969 to 29 September 1970.  The court sentenced him to a dishonorable discharge, 10 months confinement at hard labor, and forfeiture of $75 pay per month for 10 months.

5.  On 11 March 1971, the Army Court of Military Review affirmed only so much of the sentence as provides for a bad conduct discharge, 10 months confinement at hard labor, and forfeiture of $75 pay per month for 10 months.

6.  General Court-Martial Order Number 521, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, dated 26 April 1971, shows the sentence to a bad conduct discharge, forfeiture of $75 pay per month for 10 months, forfeitures to apply to pay becoming due on or after the date of the convening authority's action, confinement at hard labor for 10 months, adjudged on 
19 November 1970, as promulgated in General Court-Martial Order Number 29 was affirmed pursuant to Article 66.  It shows the appellate review was completed and the sentence, as thus modified, was ordered executed.

7.  Accordingly, on 17 May 1971, the applicant was discharged with an under other than honorable conditions characterization of service and given a Bad Conduct Discharge Certificate.  The DD Form 214 he was issued shows he completed 8 days of creditable active service for this period.  This form shows he had 722 days of time lost prior to his normal expiration term of service and 62 days lost subsequent to normal expiration term of service.

8.  He provides six letters of support from a variety of people from his community.

9.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic policy for the separation of enlisted personnel.
	a.  Chapter 11 provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was 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’s age at time of enlistment was noted (which appears to have been 20, not 18).  However, many Soldiers were inducted at a young age and went on to complete their service obligation and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge.

2.  He was convicted by a court-martial of being AWOL on two occasions.  He was issued a bad conduct discharge, which was an authorized punishment, pursuant to the approved sentence of a general court-martial for being AWOL.  He had 784 days time lost.

3.  The appellate review was completed and the affirmed sentence ordered executed.  His conviction and discharge were effected in accordance with applicable laws and regulations in effect at the time and the discharge appropriately characterizes the misconduct for which he was convicted.

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.  Absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

5.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to 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)                                         AR20120003365



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ABCMR Record of Proceedings (cont)                                         AR20120003365



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