IN THE CASE OF:	  

		BOARD DATE:	  4 February 2014

		DOCKET NUMBER:  AR20130008779 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states:

* he pled guilty to the crime he was accused of and served his time and had the opportunity to retrain, but he refused and was discharged with an UOTHC discharge
* the Army gave him a firm foundation in life and he wants the opportunity to continue being positive
* he is very sick and seeking medical help from the Department of Veterans Affairs (VA)
* he is trying to contribute to society in a positive manner by being self-sufficient
* he was young and impressionable 
* he was unaware he had options to erase the mistake he made 

3.  The applicant provides:

* DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States)
* DD Form 214 (Report of Separation from Active Duty)



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.  Records show the applicant was born on XX July 1952 and he enlisted in the Regular Army at 21 years of age on 5 February 1974.  He completed training and was awarded military occupational specialty 12B (Combat Engineer).

3.  The applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on:

* 16 July 1974, for losing a magazine for an M-16 rifle and 5 rounds of M-16 ammunition on or about 8 July 1974
* 3 October 1974, for sleeping on post on or about 25 September 1974
* 21 November 1974, for being absent from his unit and breaking restriction on or about 3 October 1974

4.  His record contains the following documents:

	a.  An undated pre-trial psychiatric evaluation from Headquarters, U.S. Army General Hospital, Frankfurt, Germany, which shows he was diagnosed with a personality disorder, unspecified, with improper use of drugs.  He had been previously seen and hospitalized for improper use of drugs in November 1974.  He admitted to drug use since the age of 16, mostly marijuana while in the United States, but snorting heroin in Germany at least once a day for about 7-8 months.  He was cleared psychiatrically for whatever administrative or legal actions were deemed appropriate by his command.

	b.  General Court-Martial Orders Number 33, issued by Headquarters, 3rd Infantry Division, dated 19 March 1975, which show he pled and was found guilty of unlawfully entering the room of four individuals with the intent to commit larceny and stealing a total value of about $109 in U.S. currency and Deutsche Marks from three of the individuals on or about 1 January 1975.  He was sentenced to forfeiture of all pay and allowances, confinement to hard labor for 18 months, and a bad conduct discharge.  His sentence was adjudged on 12 March 1975.  On 19 March 1975, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, 8 months confinement to hard labor, and forfeiture of all pay and allowances.

	c.  General Court-Martial Order Number 915, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 8 September 1975, which shows his sentence was affirmed.

	d.  A properly-constituted DD Form 214 that shows he was discharged in the rank/grade of private/E-1 with a UOTHC discharge on 29 September 1975 under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) based on an approved sentence of a general court-martial.  This form also shows he completed 1 year, 1 month, and 3 days of creditable active service and he had 202 days of lost time.

5.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Paragraph 3-11 provides that a Soldier will 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.

6.  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 evidence of record does not support the applicant's request for an upgrade of his UOTHC discharge.
2.  The applicant was 21 years of age at the time of his enlistment.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

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 record of indiscipline 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.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting veterans' benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the VA.

5.  In view of the foregoing, there is no basis for granting the relief he requests.

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)                                         AR20130008779



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ABCMR Record of Proceedings (cont)                                         AR20130008779



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