BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20120005875 


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 that his bad conduct discharge be upgraded.

2.  The applicant states that he received an honorable discharge for his first enlistment in the Army.  His conduct and efficiency were good and he received awards.

   a.  He reenlisted, completed more than 2 years of his second enlistment, and was promoted to specialist four (SP4).

   b.  He had a problem with his drinking which led to the incident that resulted in his discharge.  He adds that he endured prejudice and racial slurs while in the Army.

   c.  He states his bunk in the barracks was next to a Soldier who was a homosexual and would have sex almost every night in the bunk next to him.  He repeatedly told the Soldier to take his personal relationships elsewhere and admits that he threatened to do bodily harm to the Soldier, but he did not do so.
   
   d.  He acknowledges cutting another Soldier with a one inch fingernail cleaner knife.  However, the Soldier later told the commanding officer that the incident was his own fault.

   e.  The applicant states that the judge in his trial said, "All Mexicans settle their differences with a knife."  He adds that he doesn't know if this comment was written down, but it shows there was injustice in his case.
   f.  He has been a good citizen since his discharge.  He is an old sick man and an upgrade of his discharge would allow him to receive veterans' benefits.
   
3.  The applicant provides no additional documentary 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.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was inducted and entered active duty on
15 January 1960.  He was honorably discharged on 5 October 1960 to reenlist in the Regular Army (RA).  He had completed 8 months and 21 days of net active service.  It also shows he was:

* promoted to private first class/pay grade E-3 on 22 September 1960
* awarded the Marksman Marksmanship Qualification Badge with Rifle Bar

3.  The applicant reenlisted in the RA on 6 October 1960 for a period of 3 years.
He was assigned to Hawaii on 17 September 1961.

4.  He received nonjudicial punishment for being drunk and disorderly while on pass on 15 September 1962.

5.  On 23 January 1963, the applicant pled guilty at a general court-martial to:

* assaulting a Soldier with a dangerous weapon by stabbing him in the stomach
* threatening a Soldier by stating, "I'm going to cut your guts out!"
* threatening another Soldier by stating, "I'm going to cut you!"

6.  On 23 January 1963, he was sentenced to a forfeiture of all pay and allowances, reduction to the grade of private (E-1), confinement at hard labor for 4 years, and a dishonorable discharge.

7.  On 11 February 1963, the convening authority approved the sentence, but reduced the confinement at hard labor to 8 months.  He ordered the applicant's confinement and forwarded the record of trial to the Judge Advocate General of the Army for review by a U.S. Army Court of Military Review.

8.  A review of the available military personnel records failed to reveal a copy of the review conducted by the U.S. Army Court of Military Review.

9.  A DD Form 214 shows the applicant was discharged on 15 May 1963 with a characterization of service of under other than honorable conditions and issued a Bad Conduct Discharge Certificate.

   a.  The authority for his discharge was Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharge), paragraph 5b; Headquarters, 25th Infantry Division, General Court-Martial Order (GCMO) Number 5, dated 11 February 1963; and Headquarters, 6th U.S. Army, GCMO Number 15, dated 8 May 1963.

   b.  He had completed 2 years, 2 months, and 1 day of net active service this period and he had 157 days lost from 9 December 1962 through 14 May 1963.  

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.

11.  Army Regulation 635-204, in effect at the time of the applicant's separation, provided the authority for separation of enlisted Soldiers with a bad conduct or dishonorable discharge.  The regulation provided that an enlisted Soldier would be discharged with a bad conduct discharge pursuant to an approved sentence of a general or special court-martial imposing a bad conduct discharge.  The appellate review must be completed and the sentence affirmed before it could be duly executed.


12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded because he endured prejudice and racial slurs while in the Army, there was injustice in his case, he has been a good citizen since his discharge, and he is in need of veterans' benefits.

2.  There is no evidence of record, and the applicant provides insufficient evidence, that shows he endured prejudice during his military service or that the judge in his court-martial was prejudiced against him. 

3.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and bad conduct discharge were effected in accordance with applicable laws and regulations and the applicant's rights were protected throughout the court-martial process.

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.

5.  Based on the evidence of record, it is concluded that the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

6.  The applicant's contentions regarding his initial period of honorable service
(8 months and 21 days) and his post-service conduct were considered.  However, they are insufficient basis for upgrading his discharge.

7.  In view of the foregoing, there is no basis for granting the applicant's request.
8.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs or appropriate government agency.

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)                                         AR20120005875



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ABCMR Record of Proceedings (cont)                                         AR20120005875



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