IN THE CASE OF:	  

		BOARD DATE:  20 November 2012

		DOCKET NUMBER:  AR20120009968 


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 that based on his mental status, he believes he was not given due process.

3.  The applicant provides no additional 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.  The applicant was inducted into the Army of the United States on 23 August 1972.  He completed initial entry training and he was awarded military occupational specialty 13A (Cannoneer).  

3.  He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

	a.  1 November 1973, for willfully disobeying a lawful order from his superior commissioned officer by breaking restriction on 31 October 1973;

	b.  29 November 1973, for failing to go at the time prescribed to his appointed place duty and for disobeying a lawful order from his superior noncommissioned officer (NCO), both offenses occurring on 29 November 1973;

	c.  29 January 1974, for being absent from his appointed place of duty on
2 January 1974, failing to go at the time prescribed to his appointed place of duty on 4 and 19 January 1974, and for disobeying a lawful order from his superior commissioned officer on 14 January 1974; and 

	d.  25 February 1974, for disobeying a lawful command from his superior commissioned officer on 25 February 1974 and for being absent from his unit without authority on 25 February 1974.

4.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 8 April 1974.  This evaluation shows his behavior was found to be normal, he was fully alert and oriented, his thinking process was clear, his thought content was normal, and his memory was good.  He was also found to have no significant mental illness, he was mentally responsible, he was able to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

5.  On 19 June 1974, he was found guilty by a general court-martial of making and uttering checks without sufficient funds on 33 occasions. 

6.  He was sentenced to reduction to private (PV1)/E-1, forfeiture of all pay and allowances, confinement at hard labor for 15 months, and a bad conduct discharge.  On 12 August 1974, the sentence was approved.

7.  On 4 November 1974, the sentence having been affirmed and the provisions of Article 71c having been complied with, the sentence was ordered to be duly executed.

8.  Accordingly, on 31 December 1974, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) chapter 11, as a result of court-martial, with a bad conduct discharge.  He completed 1 year, 9 months, and 18 days of total active service with 201 days of time lost.
9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

	a.  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.

	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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his bad conduct discharge has been carefully considered.

2.  The trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and appropriately characterized the misconduct for which he was convicted.

3.  He contends that based on his mental status at the time, he was not given due process.  However, his mental status evaluation determined he had no significant mental illness and that he had the mental capacity to understand and participate in board proceedings.  In the absence of evidence to the contrary, there is no basis to support his contention.

4.  His record of indiscipline includes nonjudical punishment on four occasions and a general court-martial conviction.  Therefore, his record of service does not support an upgrade of his discharge either an honorable or a general discharge.

5.  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 seriousness of his criminal offenses and absent sufficient mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120009968



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ABCMR Record of Proceedings (cont)                                         AR20120009968



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