BOARD DATE:	  6 December 2012

		DOCKET NUMBER:  AR20120009620 


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, an upgrade of his bad conduct discharge.

2.  The applicant states he was not given a fair and just hearing.  He never stood a chance because he was placed in solitary confinement for 89 days and he went to trial on day 90.

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty)
* a DA Form 20 (Enlisted Qualification Record)
* two DA Forms 2-1 (Personnel Qualification Record)
* a DD Form 149 (Application for Correction of Military Records), dated 11 September 2008
* a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 11 September 2008
* two DD Forms 4 (Enlistment Contract - Armed Forces of the United States) 
* three letters
* a certificate of birth

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's records show he enlisted in the Regular Army on 29 December 1972.  He was assigned for basic combat training (BCT) to the 2nd Battalion, 1st BCT Brigade, Fort Jackson, SC.

3.  On 13 March 1973, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from his appointed place of duty from 9 to 10 March 1973.

4.  On 13 April 1973, he was assigned for advanced individual training (AIT) to the 14th Battalion, 4th AIT Brigade, Fort Jackson, SC.

5.  On 26 June 1973, he received NJP under Article 15, UCMJ, for being absent from his appointed place of duty on two separate occasion.

6.  He completed AIT and was awarded military occupational specialty 94B (Cook).  

7.  On 14 August 1973, he was assigned to the 1st Battalion, 82nd Field Artillery, Fort Bragg, NC.

8.  He received NJP under Article 15, UCMJ, as follows on:

* 12 September 1973, for disobeying a lawful order on three separate occasions
* 20 November 1973, for being absent from his appointed place of duty

9.  On 21 February 1974, he was convicted by a special court-martial of one specification each of:

* unlawfully striking a commissioned officer on the chest with his hand
* unlawfully hitting and kicking another Soldier about the face and body with his hand and feet
* wrongfully communicating a threat to injure a commissioned officer

10.  The court sentenced him to a bad conduct discharge, forfeiture of $160.00 per month for 6 months, confinement for 6 months, and reduction to private (PVT)/E-1.

11.  On 25 April 1974, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, forfeiture of $160.00 per month for 4 months, confinement for 4 months, and reduction to PVT/E-1, and, except for the bad conduct discharge, ordered it executed.

12.  On 10 October 1975, after the applicant's sentence was affirmed and complied with, the convening authority ordered his bad conduct discharge executed.

13.  On 20 November 1975, he was discharged from the Army.  The DD Form 214 he was issued shows he was discharged as a result of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), with an under other than honorable conditions characterization of service and issued a Bad Conduct Discharge Certificate.  He completed 2 years, 10 months, and 15 days of net active service with 195 days of time lost due to AWOL and confinement.

14.  On 15 March 1984, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and determined his discharge was both proper and equitable.

15.  Army Regulation 635-200 sets forth the basic policy governing the separation of 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.  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 evidence of record shows the applicant's trial by a special court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations, and his discharge appropriately characterized the misconduct for which he was convicted.  He could have raised the 89 days of solitary confinement prior to the start of his court-martial as an issue to be considered in mitigation during the court-martial or appellate process.

2.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  After a review of his record of service, it is clear his service did not meet the criteria for an honorable or a general discharge, or any other characterization of service other than the one he received.  Therefore, he is not entitled to the requested 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)                                         AR20120009620





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ABCMR Record of Proceedings (cont)                                         AR20120009620



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