BOARD DATE:	15 October 2013  

		DOCKET NUMBER:  AR20130003019 


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 his bad conduct discharge be upgraded to honorable.

2.  The applicant states:

* he made a big mistake 41 years ago
* he was very young at the time and he has regretted and suffered gravely because of it
* being young is not an excuse, but our minds do tend to lead us to make bad choices sometimes when we are young
* he requests the Board review his overall military record which he had all but completed when this incident happened

3.  The applicant provides four character reference letters. 

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 born on 2 September 1950.  He was inducted into the Army of the United States on 26 January 1971.  He completed training and was awarded military occupational specialty 36K (field wireman).  

3.  Between 11 November 1971 and 13 September 1972, nonjudicial punishment was imposed against him on three occasions for:

* disobeying a lawful order
* failure to repair
* being drunk and disorderly in quarters

4.  On 19 January 1973, he was convicted by a general court-martial of aggravated assault, robbery, and carrying a concealed weapon (2 specifications).  He was sentenced to confinement at hard labor for 2 years, reduction to E-1, forfeiture of $300.00 pay per month for 12 months, and a bad conduct discharge.  On 18 June 1973, the convening authority approved the sentence.

5.  Having completed the adjudged period of confinement, on 2 May 1974, he was restored to duty pending completion of his appellate review.

6.  On 13 September 1974, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

7.  On 22 January 1975, the convening authority ordered the bad conduct discharge duly executed.

8.  He was issued a bad conduct discharge on 28 February 1975 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of a court-martial.  He completed a total of 2 years, 8 months, and 5 days of creditable active service with 513 days of lost time.





9.  He provides four character reference letters from his sister and three doctors who attest:

* the applicant has regretted his actions
* his behavior over 40 years ago was out of character for him
* he has been a good citizen in the local community
* he is an intelligent, capable, dedicated, and personable man
* he bares good moral character and is trustworthy 

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

	a.  Chapter 11, in effect at the time, stated that a Soldier would 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 affirmed sentence ordered 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 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 contends he was very young at the time.  However, age is not a sufficiently mitigating factor.  He was 20 years old when he was inducted and he successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.     

2.  The character reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

3.  A 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 discharge appropriately characterizes the misconduct for which he was convicted.

4.  His record of service included three NJPs, one general court-martial conviction, and 513 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

5.  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 were therefore appropriate.  As a result, clemency is not warranted in this case.

6.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20130003019





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ABCMR Record of Proceedings (cont)                                         AR20130003019



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