BOARD DATE:	  22 April 2014

		DOCKET NUMBER:  AR20130012892 


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, he be issued a new DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he received a bad conduct discharge vice a dishonorable discharge.

2.  The applicant states that on 27 August 1969 by order of the Secretary of the Army, he was supposed to receive a bad conduct discharge instead of a dishonorable discharge.

3.  The applicant provides a DD Form 214 for the period ending 19 May 1969 and two letters.

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 14 February 1966.  He was assigned to the 2nd Missile Battalion, 61st Artillery Regiment, Okinawa, on 28 July 1966.

3. His DA Form 20 (Enlisted Qualification Record) shows he repeatedly had numerous periods of lost time due to being absent without leave (AWOL) or in confinement.

4.  His DA Form 20B (Insert Sheet to DA Form 20 - Record of Court-Martial Conviction) shows he had been convicted of various offenses by a summary court-martial on 11 March 1967 and by special courts-martial on 12 May 1967 and 2 July 1968.

5.  General Court-Martial Order Number 56, dated 18 October 1968, issued by Headquarters (HQ), U.S. Army Ryukyu Islands, shows he was convicted by a general court-martial of five specifications of, with the intent to defraud, falsely writing a check.

6.  He was sentenced to confinement for 5 years, forfeiture of all pay and allowances, and to be discharged with a dishonorable discharge.  His sentence was adjudged on 30 September 1968.  The convening authority approved only so much of the sentence as provided for confinement for 2 years, forfeiture of all pay an allowances, and the dishonorable discharge and, except for the dishonorable discharge, he ordered the sentence executed and the applicant to be confined at the U.S. Disciplinary Barracks, Fort Leavenworth, KS.

7.  He was subsequently transferred to Fort Leavenworth.

8.  General Court-Martial Order Number 402, dated 24 April 1969, issued by HQ, U.S. Disciplinary Barracks, Fort Leavenworth, shows the finding and sentence that provided for confinement for 18 months, forfeiture of all pay and allowances, and the dishonorable discharge were affirmed and the sentence, as modified, would be duly executed with confinement at Fort Leavenworth.

9.  The applicant provides and his records contain a DD Form 214 for the period ending 19 May 1969, wherein it shows he was discharged from the Army at the U.S. Disciplinary Barracks, under the provisions of Army Regulation 635-200 (Personnel Separations), as a result of court-martial (Separation Program Number (SPN) 292) with a dishonorable characterization of service.  He continued to serve the confinement portion of his sentence at Fort Leavenworth after his discharge date of 19 May 1969.

10.  The applicant provides and his records contain a letter to the Commandant, U.S. Disciplinary Barracks, dated 27 August 1969, issued by the Chief, Clemency Branch, Army and Air Force Clemency and Parole Board, wherein it stated:

	a.  As a result of consideration by the board of the applicant's request, restoration to duty and clemency on the sentences to confinement were disapproved.  However, parole had been approved effective on or before 30 September 1969 and substitution of a bad conduct discharge for the executed dishonorable discharge had been approved.  

	b.  It further stated the Bad Conduct Discharge Certificate and the [corresponding] DD Form 214 were enclosed.  It was requested they be distributed in accordance with current regulation and the applicant's copy of his Dishonorable Discharge Certificate and [corresponding] DD Form 214 be obtained from him and forwarded to the office of the Adjutant General.

11.  His available records are void of the Bad Conduct Discharge Certificate and corresponding DD Form 214 that was referred to in the letter.

12.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  The Army Clemency and Parole Board is not empowered to set aside a conviction but is empowered to change the severity of the sentence imposed in the court-martial process 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.

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states do not issue a DD Form 214 to replace record copies or DD Forms 214 lost by Soldiers (emphasis added).  If no DD Form 214 is available, issue a statement of service or transcript of military record.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the Army and Air Force Clemency and Parole Board upgraded the applicant's dishonorable discharge to a bad conduct discharge on 27 August 1969 and the Bad Conduct Discharge Certificate and corresponding DD Form 214 were provided to the U.S. Disciplinary Barracks to be issued to the applicant.  Therefore, he is not entitled to the requested relief. 

2.  However, as his records are void of the upgraded DD Form 214, it would be appropriate at this time to void his DD Form 214 for the period ending 19 May 1969 and issue him a statement of service or another appropriate document that shows he received a bad conduct discharge on 27 August 1969. 

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 voiding his DD Form 214 for the period ending 19 May 1969 and issuing him a statement of service or other appropriate document that shows he received a bad conduct discharge on 27 August 1969.

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 issuing him a new DD Form 214.  



      _______ _ 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)                                         AR20130012892





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ABCMR Record of Proceedings (cont)                                         AR20130012892



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