BOARD DATE:	  3 April 2014

		DOCKET NUMBER:  AR20130013085 


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 bad conduct discharge (BCD).

2.  The applicant states that during the period of his military service social unrest and conflict were common in the military.  He was young and immature and the incident that led to his BCD was related to a racial situation.  He was unaware of his appellant rights and he now needs medical care.

3.  The applicant provides a copy of a National Archives (NA) Form 13038 (Certification of Military Service) and a South Unit Veterans Coalition program.

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 military service records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient available documents in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  Two DD Forms 113 (Pay Records) show the applicant enlisted in the U.S. Army on 17 October 1956 for a period of 3 years.  They also show he was:

a.  absent without leave (AWOL) from:

* 6 through 8 April 1957
* 5 through 30 June 1957
* 16 September through 15 October 1957

b.  convicted by special court-martial and ordered to forfeit $165.00 pay; and

c. discharged with a BCD on 27 December 1957.

4.  The applicant's available military service records to not contain any court-martial orders or a DD Form 214 (Report of Separation).

5.  In support of his request the applicant provides the following documents:

   a.  A Certification of Military Service, issued on 25 January 2013, that shows the applicant served in the Regular Army from 17 October 1956 to 27 December 1957 and that he was discharged in the rank of private (E-2) with a BCD.  It also shows his date of birth was not available.

   b.  South Unit Veterans Coalition, Veterans Incarcerated Program, Independence Day Ceremonies, Compound Number 2, on 3 and 4 July 2013 that shows the applicant's name is listed under Coalition Membership.

6.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3, 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.

	b.  Chapter 3, 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.

7.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

8.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 contends that his BCD should be upgraded because he was young and immature and the incident that led to his BCD was related to a racial situation.

2.  The applicant's date of birth is not known.  However, it is reasonable to conclude that he was of a sufficient age to legally enter military service.  In addition, there is no evidence of record and the applicant provides insufficient evidence to support his contention that he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant's contention that the incident that led to his court-martial and discharge were racially related was a matter for consideration at his court-martial and the appeal process.  In any event, there is no evidence of record and the applicant provides no evidence to support his contention.





4.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that 
presumption.  The applicant has not provided any evidence to overcome that presumption.  Therefore, considering all the facts of this case and in the absence of evidence to the contrary, the type of discharge directed is presumed to have been, and still is, appropriate.

5.  The evidence of record shows that during the period of service under review the applicant was AWOL on three occasions, convicted by special court-martial, and issued a BCD.  In addition, he only completed about 1 year and 2 months of his 3-year service obligation.  Thus, the applicant's character of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Thus, his service cannot be categorized as honorable service or service under honorable conditions.

6.  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.  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.

7.  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)                                         AR20130013085



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ABCMR Record of Proceedings (cont)                                         AR20130013085



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