IN THE CASE OF:	  

		BOARD DATE:	  17 January 2013

		DOCKET NUMBER:  AR20120012317 


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) to a general discharge.

2.  The applicant states he received a BCD for issuing bad checks.  He thought his discharge could be upgraded to general under honorable conditions after a few years.  He filed the necessary forms twice and never received a response.  He is disabled and trying to obtain veterans' benefits.

3.  The applicant provides a one-page letter explaining his application and two third-party character references.

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 7 January 1975 for a period of 3 years, training as a supply specialist, and assignment to the 1st Infantry Division in Europe.

3.  He completed basic training at Fort Jackson, South Carolina, and advanced individual training at Fort Lee, Virginia.  He was transferred to Germany on 8 May 1975.

4.  On 18 March 1976, nonjudicial punishment was imposed against him for failure to go to his place of duty.

5.  On 15 April 1976, he was convicted by a special court-martial of six specifications of uttering worthless checks.  He was sentenced to confinement at hard labor for 75 days, reduction to pay grade E-1, and a BCD.

6.  He was transferred to the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas, to serve his confinement.

7.  On 10 December 1976, the U.S. Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

8.  On 22 September 1977, the applicant was discharged pursuant to a duly-reviewed and affirmed court-martial conviction.  He completed 2 years, 6 months, and 14 days of total active service and had approximately 62 days of lost time due to imprisonment.

9.  A review of his official records failed to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

10.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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.

11.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  Chapter 11, in effect at the time, provided that a member would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been ordered duly executed.

12.  Army Regulation 635-200, 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.

13.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's 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 BCD appropriately characterizes the misconduct for which he was convicted.

2.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant's contentions and supporting documents have been noted; however, he failed to show sufficient evidence to warrant an upgrade of his discharge when considering the serious nature of his offenses.

4.  Accordingly, there appears to be no basis for clemency in his case or an upgrade of his discharge.

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 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)                                         AR20120012317



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ABCMR Record of Proceedings (cont)                                         AR20120012317



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