IN THE CASE OF:	  

		BOARD DATE:  8 January 2013

		DOCKET NUMBER:  AR20120011755 


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 an upgrade of his bad conduct discharge (BCD).

2.  The applicant states his sentence was too harsh for the crime committed.  He states he was on drugs during his military service in Germany and requested to be relieved of duty and returned to the United States.  He states he is now in poor health and is receiving disability from the government.  He states an upgrade of his discharge and any benefits he could receive would be a blessing.  

3.  The applicant provides a Social Security Administration (SSA) Retirement, Survivors and Disability Insurance letter and accompanying medical records in support of his request.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests deliberation and disposition of this case by the Board.  

2.  Counsel states the applicant has suffered for more than 30 years with this discharge and is currently living off his social security while having a plethora of medical problems.  Given these medical problems, the applicant would benefit greatly from an upgrade of his discharge.  

3.  Counsel provides a supporting statement in support of the application.  


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 8 December 1971.  He was trained in and awarded military occupational specialty 71B (Clerk Typist).  He was advanced to the grade of private first class (PFC)/E-3 on 19 June 1972 and that this is the highest rank he attained while on active duty.  

3.  The record shows the applicant earned the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  His record documents no acts of valor or significant achievement.  

4.  On 3 July 1973, a special court-martial (SPCM) found the applicant guilty of three specifications of violating Article 91 of the Uniform Code of Military Justice (UCMJ) by disobeying a noncommissioned officer on 28 August 1988; violating Article 1121 of the UCMJ by stealing checks on two separate occasions and stealing a projector; and of violating Article 123 of the UCMJ by falsely signing another person’s name with the intent to defraud.  The resulting sentence was reduction to PV1/E-1; forfeiture of $175.00 per month for three months; confinement at hard labor for three months; and a BCD. 

5.  SPCM Order Number 43, issued by Headquarters, V Corps, dated 23 July 1973, shows the sentence adjudged on 3 July 1973 was approved by the SPCM convening authority.  

6.  SPCM Order Number 41, issued by Headquarters, V Corps, dated 11 June 1974, directed, Article 71c having been complied with, that portion of the sentence pertaining to a BCD be duly executed.

7.  On 14 December 1974, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of a court-martial with a BCD.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he completed 1 year, 6 months, and 28 days of creditable active service with 523 days of time lost due to confinement.  

8.  On 25 August 1977, the Army Discharge Review Board (ADRB), after carefully considering the applicant’s entire military service record and the issues presented by the applicant, determined his discharge was proper and equitable and voted unanimously to deny the applicant’s request for an upgrade of his discharge.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, prescribed the policies and procedures for separating members with a dishonorable or a BCD.  It stipulated that a Soldier would be given a BCD pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

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 contention that his BCD should be upgraded because his sentence was too harsh, he has lived with the bad discharge for more than 30 years, and because he is in ill health has been carefully considered.  However, there is insufficient evidence to support this request.  

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  The evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.

3.  Further, although his current medical condition and circumstances are unfortunate, they alone are not sufficiently mitigating to support an upgrade of his discharge.  Based on the gravity of the offenses resulting in his SPCM conviction and BCD, his overall record of service is not sufficiently meritorious to support clemency and/or an upgrade of his discharge.  

4.  As a matter of information, the Board does not act on discharge upgrade cases solely for the purpose of providing eligibility for benefits.  There must be evidence of an error or injustice, and/or the record must be sufficiently meritorious to support equity 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)                                         AR20120011755





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ABCMR Record of Proceedings (cont)                                         AR20120011755



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