BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120022131 


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, in effect, an upgrade of his bad conduct discharge (BCD).

2.  The applicant states he would like his BCD changed.

3.  The applicant provides no additional evidence.

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 records show he enlisted in the Regular Army 29 November 1968 and served in military occupational specialty 11B (light weapons infantryman).  Pay grade E-3 is the highest grade he attained while serving on active duty.

3.  His service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 20 February 1969 for being absent without leave (AWOL) from 16 February 1969 to 18 February 1969.

4.  He was assigned to the Republic of Vietnam (RVN) on 11 June 1969 and further assigned to Company A, 3d Battalion, 21st Infantry Regiment, 96th Infantry Brigade, effective 26 June 1969 and to the 135th Aviation Company (Assault Helicopter) on 26 August 1969.

5.  On 13 September 1971, a general court-martial (GCM) found the applicant guilty of three specifications of violating Article 86 of the UCMJ for:

* charge and specification – being AWOL from 7 October 1970 through 6 March 1971, Fort Bragg, NC
* additional charge –

* specification 1 – being AWOL from 6 October 1969 through 3 September 1970, RVN
* specification 2 – being AWOL from 19 April 1971 through 18 May 1971, Fort Bragg, NC

6.  The resulting GCM sentence was confinement at hard labor for 15 months, forfeiture of $25.00 per month for 12 months, and a BCD.  The convening authority later adjusted the applicant's confinement at hard labor to 12 months.

7.  On 24 February 1972, the U.S. Army Court of Military Review affirmed the findings and sentence.

8.  GCM Order Number 393, dated 10 April 1972, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, ordered his sentence duly executed.

9.  On 1 May 1972, the applicant was discharged under the provisions of paragraph 11-1b, Army Regulation 635-200 (Personnel Separations), with a separation program number (SPN) code of 292.  Army Regulation 635-5 (Separation Documents), in effect at the time, showed that SPN code 292 indicated separation of enlisted personnel by reason of "other than desertion (courts-martial)."  His DD Form 214 shows he received an under conditions other than honorable character of service and a BCD Certificate.  He completed a total of 10 months and 16 days of creditable service with 931 days of lost time.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1, in effect at that time, stated that an enlisted person would be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial imposing a BCD.

11.  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.

12.  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.

13.  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 disciplinary history revealed he had 931 days of lost time due to AWOL and confinement.  His trial by court-martial was warranted by the gravity of his offenses.  His conviction and discharge were effected in accordance with applicable law and regulations.

2.  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 therefor were appropriate.  As a result, clemency is not warranted in this case.

3.  In view of the foregoing, his request should be denied.



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)                                         AR20120022131



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120022131



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1