IN THE CASE OF:	  

		BOARD DATE:	  2 May 2013

		DOCKET NUMBER:  AR20120017770 


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 to an honorable discharge.

2.  The applicant states when he was stationed in Germany his wife began having extramarital affairs that resulted in her having another man's child.  When he left Germany she told him she wished he would be killed.  He was devastated and almost lost his mind, making it very difficult for him to function as a Soldier.  He was a good and faithful husband and a church-going man.  God was the only thing that kept him going and he prayed every day for the strength to make it through another day.  His marital problems significantly impacted his behavior, performance as a Soldier, and ultimately destroyed his military career.  He has been a minister for the past 25 years.  Unfortunately, he is now a very sick man who cannot be buried in a veteran's cemetery.  He asks that the Board forgive his mistakes and favorably consider his request.

3.  The applicant provides:

* DA Form 20 (Enlisted Qualification Record)
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 29 September 1964 and 9 November 1971
* Undated self-authored statement
* 28 pages of various medical records

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 
30 September 1963.  He held military occupational specialty 940.00 (Cook).  The highest rank/grade he attained while serving on active duty was specialist five (SP5)/E-5.

3.  His record contains a DA Form 2627-1 (Record of Proceedings Under
Article 15, Uniform Code of Military Justice (UCMJ)) that shows he accepted nonjudicial punishment (NJP) on 17 July 1964 for sleeping in the cab of a vehicle he was supposed to be washing on 17 July 1964.

4.  On 29 September 1964, he was honorably discharged for the purpose of immediate enlistment in the Regular Army (RA).  On 30 September 1964, he enlisted in the RA for a period of 6 years.

5.  His record contains a DA Form 20.  It does not show where he attended basic combat and advanced individual training or his first duty assignment; however it does show:

* he was assigned in Germany from 12 October 1964 through 25 October 1966
* he was assigned to Fort Bragg, NC, from 13 February 1970 to
9 November 1971
* the following intervals of time lost:

* confinement (CONF) – 12 June - 26 July 1967 (44 days)
* absent without leave (AWOL) – 23 - 30 March 1970 (8 days)
* AWOL – 12 - 30 April 1970 (19 days)
* AWOL – 6 - 12 May 1970 (7 days)

* AWOL – 13 - 20 May 1970 (8 days)
* AWOL – 2 - 4 June 1970 (3 days)
* CONF – 5 - 18 June 1970 (14 days)
* AWOL – 23 July - 11 August 1970 (20 days)
* CONF – 12 August - 30 September 1970 (50 days)
* AWOL – 6 - 9 October 1970 (4 days)
* AWOL – 12 October - 4 November 1970 (24 days)

6.  His record contains a DA Form 2627 (Summarized Record of Proceeding Under Article 15, UCMJ) that shows he accepted NJP on 4 April 1966 for failing to go at the time prescribed to his appointed place of duty on 2 April 1966.

7.  Special Court-Martial Order Number 24, issued by Headquarters,
8th Battalion, 7th Artillery, Fort Bliss, TX, dated 16 June 1967, shows he was convicted of unlawfully carrying a concealed weapon and being incapacitated/
unable to properly perform his military duties due the overindulgence of intoxicating liquor.  He was sentenced to confinement at hard labor for 2 months and a forfeiture of pay for 2 months.

8.  His record contains a DA Form 2627-1 that shows he accepted NJP on
25 June 1969 for failing to go at the time prescribed to his appointed place of duty on 23 June 1969.

9.  His record contains a DA Form 2627-1 that shows he accepted NJP on 9 April 1970 for being AWOL from 23 March 1970 to 31 March 1970.

10.  His record contains a request for physical and psychiatric evaluation, dated 29 October 1970, that shows he received a final type physical evaluation and met physical retention standards.  Additionally, he was found to have met psychiatric retention standards.  It was determined he was mentally responsible, able to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

11.  Special Court-Martial Order Number 65, issued by Headquarters, Fort Bragg, dated 13 November 1970, shows:

	a.  he was convicted by a special court-martial of being AWOL from:

* 12 - 28 April 1970
* 8 - 13 May 1970
* 13 - 21 May 1970
* 
2 - 5 June 1970
* 23 July 1970 to 12 August 1970

	b.  he was sentenced to a bad conduct discharge and reduction to the rank/grade of private (PV1)/E-1.

12.  On 15 October 1971, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

13.  His record does not contain evidence to show he petitioned the U.S. Military Court of Appeals to review his case.

14.  Special Court-Martial Order Number 138, issued by Headquarters, Fort Bragg, dated 19 October 1971, shows that after completion of all required post-trial and appellate reviews, and the provisions of Article 71c having been complied with, the convening authority ordered the applicant's reduction to PV1/E-1 and that his bad conduct discharge be duly executed.

15.  Accordingly, on 9 November 1971, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial with a bad conduct discharge and reduction to PV1/E-1.  He completed 4 years, 6 months, and 18 days of creditable active service during the period under review with 201 days of time lost.

16.  On 3 May 1982, after careful consideration of his military records and all other available evidence, the Army Discharge Review Board (ADRB) determined he was properly discharged and denied his request for an upgrade of his discharge.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-11 states 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 sentence affirmed before it can be 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 states 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.

18.  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 evidence of record shows the applicant was convicted by two special courts-martial of numerous instances of AWOL, being intoxicated on duty, and illegally carrying a concealed weapon.  He was discharged on 9 November 1971 pursuant to the approved sentence of a special court-martial.  His trial by court-martial was warranted by the gravity of the offenses 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.

2.  He provided no evidence to show his discharge or the court's decision to find him guilty is unjust or as a result of improper actions.  There is no apparent error or injustice in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations with due process and with no violation of his rights.

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

4.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general 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 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)                                         AR20120017770



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ABCMR Record of Proceedings (cont)                                         AR20120017770



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