IN THE CASE OF: 

		BOARD DATE:	    29 November 2012

		DOCKET NUMBER:  AR20120008551


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.

2.  The applicant states he asked his superior officer if he could leave and go home because his mother was being abused by his step-father.  His superior officer told him that it was up to him and he could do what he wanted to do.  The applicant concluded he had permission to leave and was surprised when they (authorities) came to pick him up.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

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 9 September 1966.  He completed training and was awarded military occupational specialty 36K (Field Wireman).  

3.  His record shows he served in the Republic of Vietnam from 30 March 1967 through 15 September 1967.

4.  His record shows he received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions:

* on 15 December 1966, for failing to go, at the prescribed time, to his appointed place of duty, on or about 14 December 1966
* on 30 October 1967, for absenting himself from his appointed place of duty, on or about 29 October 1967
* on 20 May 1968, for failing to go, at the prescribed time, to his appointed place of duty, on or about 20 May 1968
* on 27 May 1968, for sleeping while on guard duty, on or about 23 May 1968
* on 9 July 1968, for disrespecting a superior noncommissioned officer (NCO), on or about 4 July 1968

5.  At a Special Court-Martial at Fort Bragg, NC, he was charged with                  3 specifications of a single Charge of violating Article 121 of the UCMJ; specifically, he was charged with larceny and wrongful appropriation.  It is unclear whether he pled guilty or not guilty to the specifications and the charge.

6.  On 24 August 1968, the Court found him guilty of an unknown number of the specifications and the Charge, and sentenced him to confinement at hard labor for 6 months and forfeiture of $73.00 per month for 6 months.  On 29 August 1968, his sentence was approved.

7.  Special Court-Martial Order Number 182, issued by the U.S. Army Correctional Training Facility, Fort Riley, KS, dated 24 September 1968, ordered the suspension of all unexecuted portions of his sentence until 15 November 1968, at which time, unless sooner vacated, the suspended portions of his sentence were to be remitted without further action.

8.  Special Court-Martial Order Number 294, issued by the U.S. Army Correctional Training Facility, Fort Riley, KS, dated 28 October 1968, ordered the unexecuted portions of his sentence remitted.

9.  At a Special Court-Martial at Fort Belvoir, VA, he was charged with a single specification of a single Charge of violating Article 86 of the UCMJ; specifically, he was charged with being absent without leave (AWOL) from his unit, from on or about 3 December 1968 to on or about 10 February 1969.  He pled guilty to the specification and Charge.

10.  On 5 March 1969, the Court found him guilty of the specification and Charge and sentenced him to confinement at hard labor for six months and reduction to the rank/grade of private/E-1.  On 13 March 1969, his sentence was approved.

11.  On 23 March 1969, he was reported by his unit as AWOL.  He remained in an AWOL status and was eventually dropped from the rolls of the Army.  On or about 8 October 1972, he was confined in the hands of civil authorities.  On or about 25 October 1972, he was returned to military control.

12.  General Court-Martial Order Number 33, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, dated 6 June 1973, shows he was found guilty, on 18 January 1973, of an unknown number of specifications and charges, presumably regarding his period of AWOL service, and was sentenced to confinement at hard labor for 3 months, forfeiture of all pay and allowances, and a bad conduct discharge (BCD).  On 7 August 1973, his sentence was affirmed and his BCD was ordered executed.

13.  On 12 September 1973, he was discharged accordingly.  The DD Form 214 he was issued shows he was issued an under other than honorable conditions character of service.  

14.  On 19 January 1978, the Army Discharge Review Board (ADRB) declined consideration of his case because the board is not empowered to consider the upgrade of discharges resulting from a general court-martial.  The ADRB referred him to the ABCMR.  

15.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 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.

16.  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.  

17.  Army Regulation 635-200, paragraph 3-10, provides that a Soldier will be given a bad conduct discharge 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.  

18.  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 was given a bad conduct discharge pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offenses charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.  

2.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The issue he now raises could have been/should have been raised and conclusively adjudicated during the trial and appellate process.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  In view of the foregoing, there is insufficient basis to grant relief.

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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20120008551



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