IN THE CASE OF: 

		BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20130011661 


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 discharge.

2.  The applicant states he served on active duty for 2 years and was incarcerated for 58 days toward the end of his enlistment.  After being released from confinement he was returned to duty.

3.  The applicant provides no additional 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 enlisted in the Regular Army on 29 September 1972 and held military occupational specialty 71B (clerk typist).  

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on/for:

* 19 January 1973 - disobeying a lawful order
* 28 February 1973 - being absent without leave from 20 to 27 February 1973
* 16 July 1973 - assaulting a military police customs inspector
* 6 August 1973 - being disrespectful in language toward his superior noncommissioned officer and absenting himself from mandatory training
* 25 September 1973 - dereliction of duty and willfully disobeying a lawful command from his superior commissioned officer
* 2 October 1973 - attempting to steal the property of a commissioned officer and failing to obey a lawful order from his superior commissioned officer

4.  On 8 February 1974, he was convicted by a special court-martial of one specification each of stealing property valued at $354.50 from another Soldier, entering a building with intent to commit larceny, and possessing marijuana and Nunchaku sticks.  He was sentenced to confinement at hard labor for 4 months, a forfeiture of pay, and a bad conduct discharge.

5.  Special Order (SO) Number 26, dated 6 March 1974, show the convening authority approved the sentence and he was placed in confinement.  

6.  On 3 July 1974, the U.S. Army Court of Military Review approved and affirmed his sentence to a bad conduct discharge.

7.  There is no evidence he applied to the U.S. Court of Military Appeals for a review of his case.

8.  SO Number 132, dated 12 September 1974, ordered the sentence to a bad conduct discharge executed.

9.  Accordingly, he was discharged in pay grade E-1 on 3 February 1975, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 11, as a result of a court-martial, other.  He was issued a bad conduct discharge.  He completed 2 years, 1 month, and 7 days of net active service with 58 days of time lost.

10.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 11 - An enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence had been ordered duly executed. 

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

12.  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 change a court-martial 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 shows the applicant was convicted by a special court-martial of theft, illegal entry, and wrongful possession of marijuana.   The court sentenced him to a bad conduct discharge.   His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence was 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.  He has provided no evidence to show that his discharge was unjust at the time of his misconduct.  There is no error or injustice in his record.  He has provided no evidence or argument to show his discharge should be upgraded to a general or fully honorable discharge.  His misconduct during this period of enlistment, when weighed with his overall disciplinary history, warranted his bad conduct discharge.  In view of the foregoing, there is no basis for granting his 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.  Given his undistinguished record of service and absent any mitigating factors, the type of discharge directed in 1975 and the reasons therefore were appropriate.  As a result, 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)                                         AR20130011661





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ABCMR Record of Proceedings (cont)                                         AR20130011661



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