IN THE CASE OF:	  

		BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120005599 


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) to an honorable discharge.

2.  The applicant states that his records are right.  He has grown and understands the errors of his youth and has been trying to get his life and past actions to be as the man he is today.  He was very young and not mature enough to be responsible for his actions or care about his future.

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 (RA), in pay grade E-1, on 6 August 1975, for 3 years.  On the date of his enlistment in the RA, he was 18 years and 8 months of age.  He completed training and he was awarded military occupational specialty 17B (Field Artillery Radar Crewman).  He was advanced to pay grade E-2 on 6 December 1975.  He served in Germany from 22 July 1976 through 3 May 1977.  

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the following:

* 9 January 1976 - stealing the property of another Soldier
* 25 March 1976 - willfully disobeying a lawful order from his superior noncommissioned officer
* 30 March 1976 - failing to go to his appointed place of duty
* 23 April 1976 - failing to go to his appointed place of duty
* 15 December 1976 - absenting himself from his appointed place of duty from 6 to 8 December 1976
* 11 April 1977 - absenting himself from his place of duty (guard duty) from 3 to 4 April 1977

4.  On 21 April 1977, he was convicted by a general court-martial of stealing the property of the United States Government of a value of $400.00 on 30 December 1976.  His sentence included discharge from the Army with a BCD.

5.  On 20 September 1977, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, orders remitted the unexecuted portion of the sentence to forfeiture of all pay and allowances and restored the applicant to duty pending completion of appellate review.

6.  On 13 December 1977, he again accepted NJP under Article 15, UCMJ, for absenting himself from his unit from 11 to 15 November 1977 and from 28 November to 1 December 1977.

7.  On 17 March 1978, the U.S. Army Court of Military Review approved the findings of guilty and affirmed the sentence.

8.  On 8 June 1978, the U.S. Court of Military Appeals denied his request for a review of his case.

9.  On 26 June 1978, after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD executed.

10.  Accordingly, on 9 July 1978 he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 11, as a result of court-martial in pay grade E-1.  He was credited with completing 2 years, 5 months, and 27 days of total active service with 160 days of time lost.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review had to be completed and the sentence affirmed before it could be duly executed.

12.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, states 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.  

14.  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 change a court-martial 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 evidence of record shows the applicant accepted NJP on seven occasions for misconduct including being absent without leave.  He was convicted by a general court-martial of stealing government property and sentenced to a BCD.  Upon completion of appellate review he was discharged pursuant to the sentence and he was issued a BCD.

2.  His contention that his youth and immaturity made him do the wrong thing is without merit.  He was 18 years and 8 months of age when he enlisted in the RA. He was 19 years of age when he was first punished under Article 15.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  
3.  He has provided no evidence to show that his discharge was unjust at the time of his misconduct.  There is no error or injustice in his record.  He has provided no evidence or argument to show his discharge should be upgraded to a general or fully honorable discharge.  He was properly discharged in accordance with pertinent regulations, with due process.  His misconduct during this period of enlistment, when weighed with his overall disciplinary history, warranted his BCD.  In view of the foregoing, there is no basis for granting his requested relief.

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 his 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.

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)                                         AR20120005599





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ABCMR Record of Proceedings (cont)                                         AR20120005599



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