IN THE CASE OF:	

		BOARD DATE:	    4 January 2012

		DOCKET NUMBER:  AR20120010602 


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 be upgraded to a general discharge.

2.  The applicant states:

* He wants a clemency discharge 
* He is a 65 year old senior and before he dies he would like to have his discharge changed

3.  The applicant provides:

* Psychosocial summary
* Voting registration document
* Good conduct certificate
* Diploma
* Service personnel records
* Social security documents
* Letter from a Member of Congress
* Character reference letters
* Psychiatric summary
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 18 August 1969 and 21 September 1972


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 30 December 1966 for a period of 3 years.  He completed his training and was awarded military occupational specialty 36C (manual central office repairman).   

3.  On 5 May 1967, nonjudicial punishment (NJP) was imposed against the applicant for failure to repair. 

4.  On 16 October 1968, he was convicted by a general court-martial of possessing one pound of marijuana and using marijuana.  He was sentenced to be discharged from the service with a bad conduct discharge, to forfeit $69.00 pay per month for 36 months, to be confined at hard labor for 3 years, and to be reduced to E-1.  On 14 January 1969, the convening authority approved the sentence.

5.  On 12 May 1969, the U.S. Army Judiciary Office of the Judge Advocate General of the Army affirmed only so much of the sentence as provided for a bad conduct discharge, forfeiture of $69.00 pay per month for 18 months, confinement at hard labor or 18 months, and reduction to E-1.

6.  He was discharged with a bad conduct discharge on 18 August 1969 under the provisions of Army Regulation 635-200, chapter 11, as a result of a court-martial.  He had served a total of 1 year, 8 months, and 5 days of creditable active service with 349 days of lost time.

7.  On 24 September 1969, the Secretary of the Army directed he be restored to duty.  On 5 November 1969, he reenlisted for a period of 1 year, 3 months, and 25 days. 

8.  On 2 March 1971, he was convicted by a general court-martial of extortion, aggravated assault, failing to obey a lawful order (two specifications), and larceny.  He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, to be confined at hard labor for 1 year and 6 months, and to be reduced to E-1.  On 29 September 1971, the convening authority approved the sentence.  

9.  He was released on excess leave on 28 April 1972 pending completion of his appellate review.

10.  On 16 May 1972, the U.S. Army Court of Military Review approved the findings of guilty and affirmed only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 15 months, forfeiture of all pay and allowances, and reduction to E-1.

11.  On 7 September 1972, the convening authority ordered the applicant's bad conduct discharge duly executed.

12.  He was discharged with a bad conduct discharge on 21 September 1972 under the provisions of Army Regulation 635-200, chapter 11, as a result of a court-martial.  He had served a total of 3 years and 19 days of creditable active service with 126 days of lost time.

13.  He provided an undated psychosocial summary which states he has a history of mood disorder, schizophrenia, and substance abuse.    

14.  He provided character reference letters from a case manager, pastor, and neighbor who attest:

* He is well groomed, smart and bilingual, and gets along with others
* He attends mass on a regular basis
* He helps neighbors and he is clean and honest
	
15.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states 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.

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 character reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

2.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  His record of service during his first enlistment included one NJP, one general court-martial conviction, and 349 days of lost time.  It appears he was given a second chance when the Secretary of the Army restored him to duty.  However, his record of service during his second enlistment included one general court-martial conviction and 126 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

4.  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 the discharge appropriately characterizes the misconduct for which he was convicted.

5.  He wants a clemency discharge.  However, 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 were therefore appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20120010602





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ABCMR Record of Proceedings (cont)                                         AR20120010602



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