IN THE CASE OF:	  

		BOARD DATE:	    14 January 2014

		DOCKET NUMBER:  AR20130009253 


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, an upgrade of his bad conduct discharge (BCD) to an honorable discharge. 

2.  He states he is not disputing the characterization of under other than honorable conditions; he is humbly requesting that the Army Board for Correction of Military Records (ABCMR) please upgrade his discharge to honorable.   

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty) ending on 
		15 June 1979
* a self-authored statement
* three letters of support

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 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.  His record shows he enlisted in the Florida Army National Guard on 4 August 1975.  He was involuntarily ordered to active duty (AD) on 20 July 1976 for failure to fulfill the satisfactory participation requirements of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures).  He entered AD on 25 October 1976.

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in item 
18 (Appointments and Reductions) that the highest rank he attained while serving on AD was private first class/E-3 on 1 September 1977.  

4.  The applicant's record documents no acts of valor or significant achievement warranting special recognition.  It does reveal 76 days of lost time under Title 10, U.S. Code, section 972.  It also contains documentation showing that he received non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 7 January 1977 for possession of a controlled substance (marijuana).

5.  His unit retained him on AD beyond his normal Expiration Term of Service (ETS) of 22 April 1976 pending a court-martial.

6.  Special court-martial (SPCM) Order Number 67, dated 1 August 1978, shows that on 25 May 1978 Charge I was dismissed; however, he was found guilty of Charge II (stealing about $1000 worth of property belonging to another Soldier) and Charge III (unlawfully striking Sergeant WGM on the neck and facial area with his fists).  He was found not guilty of Charge IV (intent to commit larceny).

7.  He was sentenced to confinement for 3 months, a forfeiture of $265.00 per month for 3 months, and discharge from the service with a BCD.  

8.  On 1 August 1978, the sentence was approved and his record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review.  

9.  On 7 May 1979, SPCM Order Number 85, dated 7 May 1979, cited that the provisions of Article 71 (c) had been complied with and the sentence would be duly executed.  The portion of his sentence pertaining to confinement had been served.  He was placed on excess leave without pay.  

10.  His DD Form 214 shows he was discharged on 15 June 1979 under the provisions of paragraph 11-2, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), as a result of a court-martial.  His characterization of service was listed as under other than honorable conditions and he was issued a 
DD Form 259A (Bad Conduct Discharge Certificate).  He had completed 
5 months and 4 days of net active service that period; 2 years, 5 months, and 
4 days of total active service; and 2 years, 9 months, and 4 days of prior inactive service.  He had a total of 76 days of time lost subsequent to normal ETS.

11.  There is no documentation showing he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  The applicant provided three letters of support.  All three authors supported an upgrade of his BCD to an honorable discharge and described the applicant as:

* having a zeal to learn, serve and assist in helping his church and community
* an integral part of the church ministry
* having overcome some awesome physical and social challenges but has persevered with a steadfast resolve
* having tremendous growth and maturity 
* having a renewed understanding of integrity and a healthy respect for authority 
* a fine upstanding and responsible person
* well known and respected citizens (includes his family)

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of the regulation in effect at the time of the applicant's discharge provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

14.  Title 10, U.S. Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his BCD should be upgraded to an honorable discharge was carefully considered.  However, the evidence is insufficient to support an upgrade of his discharge.  
2.  The evidence of record confirms his trial by SPCM was warranted by the gravity of the offenses for which he was charged.  He was charged with stealing $1000 worth of property belonging to another Soldier and with unlawfully striking Sergeant WGM on the neck and face.  Conviction and discharge were effected in accordance with applicable laws and regulations and his rights were protected throughout the court-martial process.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

3.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that given his undistinguished record of military service, characterized by his record of misconduct, coupled with the seriousness of the offenses for which he was convicted during the court-martial, clemency would be inappropriate.

4.  His post-service conduct was considered; however, his post-service conduct alone is not sufficiently mitigating to upgrade his discharge. 

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

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)                                         AR20130009253





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ABCMR Record of Proceedings (cont)                                         AR20130009253



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