IN THE CASE OF:	  

		BOARD DATE:	  16 July 2012

		DOCKET NUMBER:  AR20120022855 


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 general under honorable conditions.

2.  The applicant states he is in perfect health and would not take advantage of military benefits; however, he would like an honorable discharge.  He claims he has never been on welfare of any kind and has the utmost respect for our servicemen.  In the 1960s, his parents were very prejudiced and caused most of his problems in the service.  He was too young and he was left with no choice but to choose between his parents or the military.  He further states he wishes he could do it over.  He signed up for levy to Vietnam three times, but was told by Sergeant P____ that he was too young and one day he would thank him.

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 enlisted in the Regular Army for a period of 3 years on 23 September 1968.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 11 April 1969 for failing to go to his appointed place of duty and for failing to obey a lawful order.

4.  On 7 July 1970, the applicant was tried by a general court-martial.  He pled guilty and was found guilty of three specifications of violating Article 86, UCMJ, by being absent from his unit for the periods 6 June through 14 August 1969, 3 September through 4 December 1969, and 24 December 1969 through 5 June 1970; two specifications of violating Article 95, UCMJ, by escaping from the lawful confinement of the post stockade on 19 June and 11 July 1970; and one specification of violating Article 128, UCMJ, by assaulting a Soldier by striking him with his fists and kicking him on 11 July 1970.

5.  The applicant was sentenced to reduction to the lowest enlisted grade, forfeiture of all pay and allowances, discharge from the service with a bad conduct discharge, and confinement at hard labor for 6 months.  No previous convictions were considered.  The sentence was adjudged on 11 September 1970.

6.  On 2 October 1970, the convening authority approved the sentence.  The forfeitures shall apply to all pay and allowances becoming due on and after the date of the action.  He also directed the record of trial be forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

7.  On 25 November 1970, the U.S. Army Court of Military Review held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact.  Accordingly, it affirmed the findings of guilty and the sentence as approved.

8.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 8 December 1970 confirms he was discharged under other than honorable conditions and issued a Bad Conduct Discharge Certificate under the provisions of Army Regulation 635-204 (Personnel Separations – Dishonorable and Bad Conduct Discharge), paragraph 1b, based on an approved sentence of a general court-martial imposing a bad conduct discharge.  At the time of his discharge the applicant had completed 9 months and 13 days of net active service during the period and he accrued 521 days of lost time.

9.  Army Regulation 635-204, in effect at the time of the applicant's separation, provided the authority for separation of enlisted Soldiers with a bad conduct or dishonorable discharge.  Paragraph 1b provided that an enlisted Soldier would be discharged with a bad conduct discharge pursuant to an approved sentence of a general or special court-martial imposing a bad conduct discharge.  The appellate review must be completed and the sentence affirmed before it could be duly executed.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  

11.  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 bad conduct discharge should be upgraded to general under honorable conditions has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  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.

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.  Given the applicant's undistinguished record of service and absent any mitigating factors the type of discharge directed and the reasons therefore 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's request.

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)                                         AR20120022855



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120022855



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1