IN THE CASE OF:	  

		BOARD DATE:  27 March 2014

		DOCKET NUMBER:  AR20130012926 


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 reconsideration of his earlier request for an upgrade of his bad conduct discharge to a general discharge.

2.  He states his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he served honorably on active duty for a total of 3 years and 19 days and this should be taken into consideration.

3.  He provides:

* The Refrigeration Institute Diploma
* The Refrigeration Institute Student Transcript
* character reference letter
* two birth certificates for his children

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120010602 on 4 January 2013.

2.  The applicant provided education and birth certifications which were not previously considered by the Board.  As such, they are new evidence and will be considered at this time.

3.  The applicant enlisted in the Regular Army on 30 December 1966 for a period of 3 years.

4.  On 5 May 1967, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to go at the time prescribed to his appointed place of duty.

5.  On 16 October 1968, he was convicted by a general court-martial of possessing one pound of marijuana and using marijuana.  He was sentenced to a bad conduct discharge, forfeiture of $69.00 pay per month for 36 months, confinement at hard labor for 3 years, and reduction to pay grade E-1.  On 14 January 1969, the convening authority approved the sentence.

6.  On 12 May 1969, the Office of the Judge Advocate General of the Army affirmed only so much of the sentence as provided for a bad conduct discharge, forfeiture of $69.00 pay per month for 18 months, confinement at hard labor for 18 months, and reduction to pay grade E-1.

7.  On 28 July 1969, his bad conduct discharge was ordered executed in Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 761.

8.  He was issued a bad conduct discharge on 18 August 1969 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of conviction by court-martial.  He completed 1 year, 8 months, and 5 days of creditable active service with 349 days of lost time.

9.  On 24 September 1969, the Secretary of the Army directed his restoration to duty.  On 5 November 1969, he reenlisted for a period of 1 year, 3 months, and 25 days.

10.  On 2 March 1971, he was convicted by a general court-martial of extortion, aggravated assault, failing to obey a lawful order (two specifications), and larceny.  He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 1 year and 6 months, and reduction to pay grade E-1.  On 29 September 1971, the convening authority approved the sentence.

11.  He was released in an excess leave status on 28 April 1972 pending completion of his appellate review.

12.  On 16 May 1972, the U.S. Army Court of Military Review approved the findings of guilty and affirmed only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 15 months, forfeiture of all pay and allowances, and reduction to pay grade E-1.

13.  On 7 September 1972, the convening authority ordered the applicant's bad conduct discharge duly executed.

14.  He was issued a bad conduct discharge on 21 September 1972 under the provisions of Army Regulation 635-200, chapter 11, as a result of conviction by court-martial.  He completed 1 year, 4 months, and 14 days of net active service during this period for a total of 3 years and 19 days of creditable active service with 126 days of lost time.

15.  He provided the following documents as new evidence:

	a.  The Refrigeration Institute Student Transcript, dated 17 August 2012, shows he completed Refrigeration and Air Conditioning Training on 8 August 2012.

	b.  The Refrigeration Institute Diploma, dated 17 August 2012, shows he was awarded this diploma for successfully completing the 450-Hour Charging, Recovery, and Trouble-Shooting Course at The Refrigeration Institute.

	c.  A character reference letter from a Senior Nutrition Program Case Manager, dated 2 December 2011, attested that the applicant is smart, well-groomed, bilingual, and well-mannered and he gets along with his fellow senior peers.  Also, he volunteers at the center when his help is needed.

	d.  Two birth certificates issued in February 2013 show he has a son and daughter.

16.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11, in effect at the time, stated that a Soldier would 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.

17.  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.

18.  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 applicant's contention that he served 3 years and 19 days honorably on active duty was carefully considered.

2.  However, his record of service during his first enlistment included one nonjudicial punishment, one general court-martial conviction, and 349 days of lost time.  Although he had been restored to duty, during his second enlistment he received one general court-martial conviction and 126 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

3.  The applicant's evidence regarding his post-service conduct is also acknowledged.  However, good post-service conduct alone is not a basis for upgrading a discharge.

4.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge he received appropriately characterizes the misconduct for which he was convicted.

5.  He apparently wants a clemency discharge.  However, 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 were appropriate.  As a result, clemency is not warranted in this case.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.



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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120010602, dated 4 January 2013.




      _______ _  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)                                         AR20130012926



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ABCMR Record of Proceedings (cont)                                         AR20130012926



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