IN THE CASE OF:	  

		BOARD DATE:  1 November 2012

		DOCKET NUMBER:  AR20120005522 


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:

   a.  in 1966, while at home on leave he received a gun charge for hurting a man in self defense in Memphis, Tennessee;
   
   b.  after his return to Fort Campbell, Kentucky, he was picked up, returned to Memphis, placed on a $15,000.00 bond, and returned to Fort Campbell;
   
   c.  a few days later he was assigned to Vietnam and his unit officials were aware of all matters pertaining to his gun charge and bond arrangement;
   
   d.  having sustained an injury, he was reassigned from Vietnam to the 249th General Hospital in Japan, where he remained until he was transferred to the hospital at Fort Campbell;
   
   e.  although he was on bond, he was picked up a second time while in Memphis regarding the gun charge he received in 1966 and subsequently charged with being absent without leave (AWOL).
   
3.  The applicant provides a self-authored statement.



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's military record shows he enlisted in the Regular Army on 22 July 1965.  He was trained in and awarded MOS 56A (Supply Handler).

3.  His disciplinary history includes a summary court-martial (SCM) conviction, three convictions by special court-martial (SPCM), and acceptance of non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 6 August and 27 September 1966.

4.  On 3 September 1968, pursuant to his plea, a general court-martial (GCM) found the applicant guilty of two specifications of violating Article 86 of the UCMJ, for being AWOL from 29 June through 2 August 1968 and from 3 to 7 August 1968. The resulting sentence was a BCD, a forfeiture of all pay and allowances, and confinement at hard labor for 1 year and 6 months.

5.  GCM Order Number 100, Headquarters, Fort Campbell, Fort Campbell, dated 28 October 1968, directed that Article 71c of the UCMJ having been complied with, the BCD be executed, and the unexecuted portion of the sentence to confinement at hard labor for 6 months be remitted.  On 8 November 1968, the applicant was discharged accordingly.

6.  The DD Form 214 issued upon the applicant confirms he was discharged under the provisions of chapter 11, Army Regulation 635-200, due to court-martial.  He completed 2 years, 5 months, and 4 days of net active service and he had 318 days of lost time.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of the version of regulation in effect at the time prescribed the policies and procedures for separating members with a BCD.  It stipulated that a Soldier would be given a BCD pursuant only to an approved sentence of a GCM and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

8.  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 his BCD should be upgraded be to an HD.

2.  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.

3.  Further, the available evidence confirms the applicant had an extensive disciplinary history that included one SCM conviction, three SPCM convictions, two NJP's, and 318 days of lost time, which resulted in a GCM conviction and the issuance of a BCD.  After a thorough and comprehensive review of the applicant’s military service record it was concluded that based on his disciplinary history and the seriousness of the offenses for which he was convicted, 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)                                         AR20120005522



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ABCMR Record of Proceedings (cont)                                         AR20120005522



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