IN THE CASE OF:	

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120010312 


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 his bad conduct discharge (BCD) be upgraded to an honorable discharge.

2.  He states he was court-martialed and convicted of a crime (felony) that he did not commit which resulted in his BCD.  

3.  He provides a copy of 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's military record shows he enlisted in the Regular Army, in pay grade E-1, on 30 January 1968, for 2 years.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was advanced to pay grade E-2 on 30 May 1968.  

3.  On 23 January 1969, he was convicted by a summary court-martial of absenting himself from his unit from 26 December 1968 to 13 January 1969.  He was sentenced to confinement at hard labor for 1 month, a forfeiture of $73.00 pay for 1 month, and reduction to pay grade E-1.  A lesser sentence was approved and ordered executed on the same day.

4.  On 13 June 1969, he was convicted by a summary court-martial of absenting himself from his unit from 16 March to 22 April 1969.  He was sentenced to a forfeiture of $73.00 pay for 1 month.  The sentence was approved and ordered executed on the same day.

5.  On 17 September 1969, he was convicted by a general court-martial of stealing a 1962 Pontiac, of a value in excess of $100.00, the property of another individual on 13 June 1969.  He was sentenced to confinement at hard labor for 9 months, a forfeiture of $50.00 pay per month for 9 months, and a BCD.

6.  On 2 March 1970, the convening authority approved the sentence.

7.  On 11 May 1970, having served the period of confinement adjudged he was restored to duty pending appellate review.

8.  On 29 June 1970, he accepted punishment under Article 15, Uniform Code of Military Justice, for absenting himself from his organization from 12 to 29 June 1970.  

9.  On 17 May 1971, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

10.  General Court-Martial Order Number 8, issued by Headquarters, U.S. Army Training Center Engineer and Fort Leonard Wood, MO, on 17 March 1971 shows the sentence to a BCD was affirmed and was ordered duly executed.

11.  There is no indication he petitioned the U.S. Court of Military Appeals for a review of his conviction.  

12.  Accordingly, on 25 March 1971, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 11, as a result of court-martial, in pay grade E-1.  He was credited with completing 2 years and 18 days of active service with 404 days of time lost.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review had to be completed and the sentence affirmed before it could be duly executed.

   a.  Paragraph 3-7a stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

   b.  Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

14.  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 change a court-martial 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 was twice convicted by summary courts-martial and punished under Article 15 for lengthy periods of absence from his organization.  He was convicted by a general court-martial of stealing the motor vehicle of another individual.  On 25 March 1971, he was discharged pursuant to the sentence of his general court-martial and he was issued a BCD after the sentence was affirmed.

2.  He provided no evidence to show his discharge is unjust.  There is no error or injustice apparent in his record.  There is also no evidence his last court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to a general or a fully honorable discharge.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.

3.  Trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

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.  Given his offenses and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20120010312





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ABCMR Record of Proceedings (cont)                                         AR20120010312



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