IN THE CASE OF:	  

		BOARD DATE:	  7 November 2013

		DOCKET NUMBER:  AR20130004560 


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, upgrade of his dishonorable discharge.

2.  The applicant states the discharge he received in 1962 was not in error nor was it unjust.  He is ashamed of his service to the country and wishes to express his regret for his teenage stupidity.  

   a.  He has tried to live an honorable life since being discharged from the Army.  He recently retired after 20 years in education and he is an ordained Baptist minister.

   b.  He respectfully requests upgrade of his discharge.

3.  The applicant provides no additional documentary evidence in support of his request.

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.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant enlisted in the Regular Army (RA) on 
18 December 1959 and he was honorably discharged on 15 November 1961 to reenlist in the RA.

   a.  It also shows he:

* was awarded military occupational specialty 724 (Switchboard Operator)
* attained the rank/grade of specialist four (SP4)/E-4 on 17 October 1961
* was awarded the:

* Expert Marksmanship Qualification Badge with Rifle (M-1) Bar
* Marksman Marksmanship Qualification Badge with Carbine Bar

	b.  He completed 1 year, 10 months, and 27 days of net active service during this period that included 1 year, 4 months, and 25 days of foreign service in U.S. Army Europe (USAREUR).

3.  On 16 November 1961, while still serving in USAREUR, the applicant reenlisted in the RA for a period of 6 years.

4.  Headquarters, Fort Devens, MA, General Court-Martial Order Number 45, dated 9 July 1962, shows the applicant was tried by a general court-martial.

	a.  He pled guilty and he was found guilty of:

* being absent without leave (AWOL)

* from 19 January to 19 February 1962
* from 2 March to 14 March 1962

* escaping from lawful confinement on 8 May 1962

	b.  His sentence was adjudged on 13 June 1962.  He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for 18 months.

   c.  On 9 July 1962, the General Court-Martial Convening Authority (GCMCA) approved only so much of the sentence that provided for a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for nine months.

5.  Headquarters, First U.S. Army, Governors Island, NY, General Court-Martial Order Number 156, dated 28 September 1962, confirmed the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, the sentence was ordered duly executed.  On 29 November 1962, the unexecuted portion of the applicant's sentence to confinement at hard labor for nine months was remitted by the GCMCA.

6.  The applicant's DD Form 214 for the period ending 28 September 1962 shows he was dishonorably discharged under the provisions of Army Regulation 
635-204 based on sentence of court-martial with Separation Program Number 292.  He completed 2 months and 11 days of net active service this period with 242 days of lost time.

7.  Army Regulation 635-204, in effect at the time, provided that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial empowered to impose a dishonorable discharge.  The appellate review must be completed and the sentence affirmed before the sentence can be ordered duly executed.  

8.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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.

9.  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.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant acknowledges that his dishonorable discharge was not in error or unjust at the time.  He regrets and is ashamed of his mistakes, he has tried to live an honorable life for the past 50 years, and respectfully requests upgrade of his discharge.

2.  Records show the applicant satisfactorily completed training, was promoted to SP4/E-4, and he was honorably discharged to reenlist in the RA after completing almost 1 year and 5 months of active service.  He subsequently went AWOL (on two occasions) and he escaped from confinement.

3.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

4.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

5.  After a thorough and comprehensive review of the applicant's military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency would not be appropriate in this case.  

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

7.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, his post-service conduct is insufficient as a basis for changing or upgrading 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 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)                                         AR20130004560



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ABCMR Record of Proceedings (cont)                                         AR20130004560



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