IN THE CASE OF:	  

		BOARD DATE:	  2 January 2014

		DOCKET NUMBER:  AR20130005069 


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:

	a.  upgrade of his bad conduct discharge; and

	b.  correction of his military records to show his social security number (SSN) as "xxx-x0-xxxx."

2.  The applicant states:

* he was innocent of the crime
* his SSN is incorrect
* his SSN is "xxx-x0-xxxx"

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 on 29 March 1966 for a period of 
3 years.  He completed his training and was awarded military occupational specialty 43K (canvas and web equipment repairman).  He served in Vietnam from 23 November 1966 to 21 November 1967.

3.  Special Court-Martial Order (SPCMO) Number 206, dated 26 July 1968, shows he was convicted of being absent without leave from 4 June 1968 to 
1 July 1968.  His SSN is shown as "xxx-x8-xxxx."

4.  On 26 March 1969, he was convicted by a general court-martial of robbery.  He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for 5 years.  On 19 May 1969, the convening authority approved the sentence.  His SSN is shown as "xxx-x8-xxxx."    

5.  On 10 December 1969, the U.S. Army Court of Military Review affirmed the findings of guilty and sentence.  His SSN is shown as "xxx-x8-xxxx."

6.  On 24 March 1970, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 313, dated 24 March 1970, shows the applicant's sentence had been finally affirmed and, Article 71(c) having been complied with, the dishonorable discharge would be executed.  His SSN is shown as "xxx-x8-xxxx."

7.  He was dishonorably discharged on 13 April 1970 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of a court-martial.  He completed 2 years, 9 months, and 6 days of creditable active service with 82 days of lost time.  Item 3 (SSN) of his DD Form 214 shows his SSN as "xxx-x0-xxxx." 

8.  In November 1970, the Secretary of the Army directed the substitution of a bad conduct discharge for the executed dishonorable discharge.  His SSN is shown as "xxx-x8-xxxx."

9.  His records contain a letter, dated 29 November 2011, wherein the applicant states his SSN is "xxx-x0-xxxx."

10.  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.

	c.  Chapter 11, in effect at the time, stated that a Soldier would be given a bad conduct discharge or dishonorable 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.

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.  His contention that he was innocent of the crime relates to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.

2.  A trial by court-martial was warranted by the gravity of the offense 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.

3.  The Secretary of the Army changed his dishonorable discharge to a bad conduct discharge.

4.  His record of service included one special court-martial conviction, one general court-martial conviction for robbery, and 82 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, any further clemency is not warranted in this case.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief for a discharge upgrade.

7.  The applicant contends his SSN is "xxx-x0-xxxx."  His DD Form 214 confirms he recorded his SSN as "xxx-x0-xxxx" in 1970 and is accepted as sufficient evidence of his SSN.  Therefore, it would be appropriate to correct his military records to show his SSN as "xxx-x0-xxxx."

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his SSN as "xxx-x0-xxxx."



2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrade of his bad conduct discharge. 



      _______ _   _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)                                         AR20130005069





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ABCMR Record of Proceedings (cont)                                         AR20130005069



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