IN THE CASE OF:	  

		BOARD DATE:  19 February 2014

		DOCKET NUMBER:  AR20130010290 


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 under other than honorable conditions discharge. 

2.  The applicant states:

* he had no criminal records; he experienced a death in the family at the time when his older brother died and left a wife and a daughter
* he suffered from depression and doctors told him most of his problems were from handling family problems

3.  The applicant does not provide any evidence. 

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's records show he enlisted in the Regular Army on 17 June 1975 and held military occupational specialty 11B (Infantryman).  He was assigned to Fort Carson, CO. 

3.  On 1 March 1976, he departed his unit in an absent without leave (AWOL) status but he returned to military control on 19 March 1976.  

4.  On 29 March 1976, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 1 March to 18 March 1976.  

5.  On 17 September 1976, he was convicted by a special court-martial of:

* two specifications of stealing various electronic equipment from Sears
* two specifications of unlawfully entering Government property with intent to commit larceny
* one specification of being AWOL from 3 to 17 August 1976

6.  The court sentenced him to a forfeiture of $100.00 per month for 3 months, confinement at hard labor for 3 months, and a bad conduct discharge.  The convening authority approved the sentence on 8 October 1976.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 

7.  On 23 December 1976, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS,  Special Court-Martial Order Number 109, dated 14 March 1977, shows that after completion of all required post-trial and appellate reviews the convening authority ordered the applicant's bad conduct discharge executed.

9.  He was discharged on 13 April 1977.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a bad conduct discharge.  This form further shows he completed 1 year, 4 months, and 10 days of creditable military service and he had 167 days of lost time. 

10.  There is no indication he petitioned the Army Discharge Review Board for a review of his case 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, 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.

13.  Army Regulation 635-200, 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 evidence of record shows the applicant's trial by a special 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 the applicant was convicted. 

2.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

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 undistinguished record of service 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.  His contention that his misconduct was caused by depression and/or death in the family is not supported by any evidence.  In any case, such contention would have or should have been raised during the appellate review.  Nowhere in his records does it show he suffered from a mental, psychological, or medical condition that led to his misconduct.  There is no evidence in his records and he did not provide any substantiating evidence that shows his misconduct was a result of depression or any mental condition. 

5.  Based on his record of misconduct, that included one instance of NJP, two instances of AWOL, and a special court-martial conviction, and after a careful review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, he is not entitled to an upgrade of 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)                                         AR20130010290





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ABCMR Record of Proceedings (cont)                                         AR20130010290



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