BOARD DATE:	  19 December 2013

		DOCKET NUMBER:  AR20130004729 


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 he is disabled, homeless, and unemployed.

3.  The applicant provides no additional documentation.

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.  He enlisted in the Regular Army on 31 August 1972 and served as a motor transport operator.  His disciplinary history includes acceptance of nonjudicial 


punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for committing the following offenses:

* on 2 March 1973, using disrespectful language toward a noncommissioned officer 
* on 15 April 1974, for being absent from his appointed place of duty on
6, 8, and 9 April 1974

3.  Special Court-Martial Order Number 6 (Corrected Copy), issued by Headquarters, 1st Battalion, 44th Air Defense Artillery, Korea, dated 
18 September 1973, shows the applicant pled not guilty but was found guilty of disrespecting a commissioned officer and committing assault.

4.  General Court-Martial Order Number 15, issued by Headquarters, Eighth U.S. Army Area Command (Provisional), dated 2 April 1974, shows he pled guilty and was found guilty of:

* willfully destroying and breaking apart one wooden chair and one wooden table, Government property
* wrongfully refusing to obey the lawful orders of and fighting military police guards at the U.S. Army Confinement Facility

5.  He was sentenced to a bad conduct discharge, 3 months in confinement at hard labor, and a forfeiture of $100.00 pay for 3 months.  His sentence was adjudged on 2 November 1973.  The confinement portion of his sentence was amended to confinement at hard labor for 75 days and the execution of his bad conduct discharge was suspended for the period of confinement and 6 months thereafter, at which time, unless the suspension was sooner vacated, the suspended portions would be remitted without further action.  The Record of Trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review. 

6.  General Court-Martial Order 6, issued by the U.S. Army Quartermaster Center and Fort Lee, Fort Lee, VA, dated 4 June 1974, directed the unexecuted portion of the approved sentence to a bad conduct discharge would not be ordered into execution at that time.  The applicant having served the approved period of confinement at hard labor and being restored to duty would continue in a duty status with entitlement to pay and allowances as provided by law pending completion of appellate review by a Court of Military Review.

7.  Special Court-Martial Order Number 55, issued by the Headquarters, U.S. Army Quartermaster School Brigade, Fort Lee, VA, dated 21 August 1974,  shows the applicant was found guilty of failing to obey a lawful order and unlawfully striking another Soldier on the face and grabbing him by the throat. 

8.  General-Martial Order Number 4, dated 6 January 1975, issued by the U.S. Army Retraining Brigade shows his sentence was affirmed and Article 71(c) having been complied with, ordered the bad conduct discharge be executed.

9.  His DD Form 214 (Report of Separation from Active Duty) shows he was issued a bad conduct discharge on 14 January 1975 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, as a result of court-martial.  He completed 1 year, 
2 months, and 23 days of total active service with 259 days of time lost.

10.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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.

12.  Army Regulation 635-200 sets forth the basic authority for 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.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his bad conduct discharge to an honorable discharge was carefully considered and found not to have merit.

2.  The evidence of record shows the his trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which he was convicted.

3.  Based on the seriousness of the misconduct for which the applicant was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting the requested relief.

4.  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.  Clemency is not warranted in this case.

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)                                         AR20130004729



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ABCMR Record of Proceedings (cont)                                         AR20130004729



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