IN THE CASE OF:	  

		BOARD DATE:  11 October 2012

		DOCKET NUMBER:  AR20120005681 


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.  He states his honorable discharge should have been grandfathered in 12 months after receipt of his BCD but was not.  

3.  He provides a certificate of training.  

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 25 July 1972.  

3.  He submitted a certificate of training, issued on 22 November 1972, which shows he completed training for military occupational specialty (MOS) 15F (Missile Crewman) while assigned to Fort Sill, OK.

4.  Special Court-Martial (SPCM) Order Number 122, published by Headquarters, U.S. Army Infantry Center and Fort Benning, Fort Benning, GA, on 12 November 1973, shows he pled not guilty, but was found guilty of two specifications of violating Article 86 of the Uniform Code for Military Justice (UCMJ) for being AWOL from 10 December 1972 through 10 March 1973 and 16 April through    29 August 1973.  

5.  The following sentence was adjudged on 28 September 1973:

* BCD
* Reduction to private/E-1
* Forfeiture of $150.00 pay per month for 4 months
* Confinement for 95 days

6.  On 12 November 1973, the sentence was approved and the record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  Pending completion of the appellate review, the applicant remained in confinement.

7.  On 14 December 1973, the U.S. Army Court of Military Review upheld the findings of guilty and found the sentence correct in law and fact and affirmed the findings of guilty and the sentence.

8.  SPCM Order Number 237, issued by Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, on 16 April 1974, shows the appropriate authority ordered the BCD to be duly executed.

9.  On 15 May 1974, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 11-2, as a result of court-martial.  He completed a total of 9 months and 24 days of creditable active service with 361 days of lost time.  

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a BCD 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.

11.  Army Regulation 635-200, 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.  

12.  Army Regulation 635-200, 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.  

13.  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 he was told his discharge would be upgraded within 12 months of his discharge from the Army.  However, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  His service record shows he was convicted by an SPCM.  As a result, although he completed his MOS training, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an honorable or 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)                                         AR20120005681



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ABCMR Record of Proceedings (cont)                                         AR20120005681



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