IN THE CASE OF:	  

		BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120006876 


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, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to delete the entry "DISCH WHILE IN AWOL STATUS," indicating he was discharged while in an absent without leave status.  He further requests upgrade of his bad conduct discharge.

2.  He states:

* he was sent to 1---8 Blackstone (his home of record (HOR)) on extended leave
* his DD Form 214 states he was discharged under honorable conditions

3.  He provides no additional documents.

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 was inducted into the Army of the United States on 15 July 1969.  He did not complete basic training.

3.  Summary Court-Martial Order Number 20, issued by Headquarters, Third Basic Training Combat Brigade, U.S. Army Training Center Engineer, Fort Leonard Wood, MO, dated 24 October 1969, shows:

	a.  he pled guilty and was found guilty of violating Article 86 of the Uniform Code for Military Justice (UCMJ) by being AWOL from on or about 25 August to on or about 10 October 1969.

	b.  sentence was adjudged on 23 October 1969 that consisted of confinement at hard labor for 1 month and a forfeiture of pay.

	c.  on 24 October 1969, the appropriate authority ordered the portion of the sentence pertaining to confinement be suspended for 1 month and the remaining sentence to be duly executed.

4.  Special Court-Martial Order Number 149, issued by Headquarters, U.S. Army Training Center Engineer, Fort Leonard Wood, dated 15 September 1970, shows:

	a.  he pled not guilty but he was found guilty of violating Article 86 of the UCMJ by being AWOL from on or about 3 November 1969 to on or about 8 April 1970.

	b.  sentence was adjudged on 5 June 1970 that consisted of confinement at hard labor for 4 months, forfeiture of pay for 6 months, and a bad conduct discharge.

	c.  on 15 September 1970, the appropriate authority approved the sentence.  Pending completion of appellate review, the applicant would be confined in the Post Stockade, Fort Leonard Wood, or elsewhere as competent authority may direct.


5.  Letter Orders Number 9-48, issued by the same headquarters, dated
18 September 1970, placed the applicant on excess leave without pay and allowances, effective 18 September 1970 for an indefinite period, pending appellate review of his sentence to a punitive discharge.  The special instructions section states "Leave will not accrue during this period of absence.  Upon receipt of the appellate review at this headquarters, individual will comply with written instructions which will be mailed to his leave address."  The leave address on these orders is the applicant's HOR.

6.  Special Court-Martial Order Number 4, issued by the same headquarters, dated 7 January 1971, states that the provisions of Article 71c having been complied with, the applicant's sentence will be duly executed.

7.  Special Order Number 314, issued by Headquarters, U.S. Army Training Center, Fort Leonard Wood, dated 10 November 1971, discharged the applicant under the provisions of Army Regulation 635-200, chapter 11, with a Bad Conduct Discharge Certificate, by reason of court-martial.

8.  On 10 November 1971, he was discharged accordingly.  He completed 6 months and 2 days of total active service.  The DD Form 214 he was issued shows in:

	a.  item 13a (Character of Service) – under conditions other than honorable.

	b.  item 13b (Type of Certificate Issued) – DD Form 259A (Bad Conduct Discharge Certificate).

	c.  item 21 (HOR at Time of Entry into Active Service) – 1--8 Blackstone Avenue, St. Louis, MO.

	d.  item 30 (Remarks):
		(1)  “544 days lost under 10, USC, 972 from 25Aug-10Oct69,              3Nov69-9Apr70, 14Apr-26May70, 30May-13Sep70, 7Jan71-14Jul71.”

		(2)  discharged while in AWOL status; and 

		(3)  “119 days lost on or subsequent to normal ETS from                    15Jul-10Nov71.”


9.  On 21 January 1982, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge bad conduct discharge to an honorable discharge.  On 24 August 1982, the ADRB, after careful consideration of his military records and all other available evidence, determined he was properly discharged.  As a result, his request for discharge upgrade was denied.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 11 of the regulation in effect at the time of the applicant's discharge provided the policies and procedures for separating members with a dishonorable or 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 special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

	b.  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.

	c.  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.  

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.  Regarding the entry "DISCH WHILE IN AWOL STATUS" on his DD Form 214, the evidence of record shows the applicant was placed on excess leave status by letter orders, effective 18 September 1970, for an indefinite period pending completion of appellate review of his court-martial sentence to a punitive discharge.
2.  It appears the applicant was not in an AWOL status at the time of his discharge; however, during the processing of his DD Form 214 an administrative error occurred resulting in the erroneous entry.  Therefore, it would be appropriate at this time to remove this entry from his DD Form 214.

3.  Regarding the applicant's request to upgrade his bad conduct discharge, his contention has been carefully considered and found to be without merit.

4.  The applicant was tried and found guilty by two courts-martial for his extended periods of AWOL that were warranted by the gravity of the offenses charged.  The convictions and subsequent discharge was effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

5.  As a result, his record of service was not satisfactory and he 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 a general discharge.

6.  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 the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  Therefore, clemency is not warranted in this case.

BOARD VOTE:
________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by 


deleting from item 30 of his DD Form 214 the entries "DISCH WHILE IN AWOL STATUS"; “7Jan71-14Jul71”; and “119 days lost on or subsequent to normal ETS from 15Jul-10Nov71”; and adding to item 30 the entry "DISCH WHILE IN EXCESS LEAVE STATUS."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrade of his bad conduct discharge to an honorable or a general discharge.



      _____________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)                                         AR20120006876



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ABCMR Record of Proceedings (cont)                                         AR20120006876



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