BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20120005471 


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).  

2.  The applicant states he does not believe he did what he was charged with and that he spiraled downward after being injured.  He further states it was known the individual he allegedly accosted did not like him.  

3.  The applicant provides no documentary evidence in support of his request.  

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 1 September 1970.  He was trained in and awarded military occupational specialty 63B (Wheel Vehicle Mechanic).  His record shows he was advanced to specialist four (SP4)/E-4 on 26 May 1970, and this was the highest rank he attained while on active duty.  It also shows he was reduced to private first class/E-3 for cause on 21 October 1971, and reduced to private/E-1 for cause on 20 December 1971.  

3.  The record shows the applicant earned the National Defense Service Medal and Vietnam Service Medal.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the offenses indicated:

	a.  4 March 1969, for wrongfully and falsely altering a military identification card with intent to deceive;

	b.  21 August 1971, for failing to go to his appointed place of duty at the time prescribed on 20 August 1971; and 

	c.  27 October 1971, for absenting himself from his appointed place of duty on 18 October 1971.

4.  On 4 December 1971, a Special Court-Martial (SPCM) found the applicant guilty of two specifications of violating Article 128 of the UCMJ by committing assault on two Soldiers on 17 November 1971; and of three specifications of violating Article 134 of the UCMJ by wrongfully communicating threats to three Soldiers on 17 November 1971.  The resulting sentence was a BCD, confinement at hard labor for 180 days; and to forfeit $75.00 a month for six months.  

5.  SPCM Order Number 91, issued by Headquarters, 101st Airborne Division (Airmobile), APO San Francisco 96383, dated 20 December 1971, shows the SPCM convening authority approved only so much of the sentence adjudged on 4 December 1971 that provided for a BCD, confinement at hard labor for two months, and forfeiture of $75.00 per month for two months.   

6.  On 13 June 1972, the United States Army Court of Military Review affirmed the findings of guilty and the approved sentence in the applicant's case after having found the findings of guilty and sentence as approved by proper authority correct in law and fact. 



7.  SPCM Order Number 39, dated 29 August 1972, issued by Headquarters, U.S. Army Training Center and Fort Leonard Wood, Fort Leonard Wood, Missouri, dated 29 August 1972, directed that, Article 71c having been complied with, that portion of the sentence be duly executed.

8.  On 20 September 1972, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of court-martial with a bad conduct discharge, under other than honorable conditions.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he completed a total of 4 years, 4 months, and 27 days of creditable active military service with 35 days of time lost due to confinement.  

9.  There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, prescribed the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

11.  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 that his BCD `be upgraded because he does not believe he committed the offense he was charged with and because his spiral down was the result of an injury has been carefully considered.  However, there is an insufficient evidentiary basis to support this claim.  



2.  There is no evidence of record or independent evidence provided by the applicant supporting his assertion that he did not commit the offenses that resulted in his court-martial conviction, or that his actions resulted from the injury he received.  

3.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  The evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.

4.  In view of the applicant's extensive disciplinary history and based on the gravity of the offenses resulting in his SPCM conviction and bad conduct discharge, his overall record of service is not sufficiently meritorious to support clemency and/or an upgrade of his 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)                                         AR20120005471





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ABCMR Record of Proceedings (cont)                                         AR20120005471



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