BOARD DATE:  25 March 2014

		DOCKET NUMBER:  AR20130013404


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:

* he would like his discharge upgraded so he can be entitled to some benefits and back pay
* he did not receive good representation at his hearing
* Fort Hood, TX, was racially biased and he was subject to discrimination there

3.  The applicant provides no additional evidence in support of his request.

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.  On 31 October 1974, the applicant enlisted in the Regular Army.  He completed his initial entry training and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  Later, he was awarded MOS    11B (Infantryman) as his primary MOS.  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  On or about 8 January 1975, he was assigned to 2nd Battalion, 50th Infantry Regiment, 2nd Armored Division, at Fort Hood, TX.

4.  On 3 July 1975, he received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the prescribed time to his appointed place of duty, on or about 27 June 1975.

5.  On 26 August 1975, he received NJP, under the provisions of Article 15 of the UCMJ, for the following offenses:

* for failing to go at the prescribed time to his appointed place of duty, on or about 12 August 1975
* for failing to obey a lawful order, on or about 12 August 1975

6.  On 12 December 1975, before a special court-martial at Fort Hood, TX, he was convicted of:

* 2 specifications of the Charge of violating Article 128, UCMJ, by unlawfully striking 2 fellow Soldiers in the face and head with a closed fist, on or about 8 October 1975 and 11 October 1975
* a single specification of an additional charge for violating Article 128, UCMJ, by unlawfully kicking a fellow Soldier in the back and head, on or about 11 October 1975

7.  On 9 February 1976, the court sentenced him to:

* be discharged from the Army with a BCD
* confinement at hard labor for 3 months
* forfeiture of $240.00 pay per month for 3 months
* reduction to the rank/grade of private/E-1

8.  On 9 February 1976, the convening authority approved his sentence and, except for the bad conduct discharge, ordered it executed.  The applicant was confined at the Area Confinement Facility, Fort Hood, TX.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.
9.  The U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in his court-martial.  The U.S. Court of Military Appeals denied his petition for review.

10.  Special Court-Martial Order Number 27, issued by the Headquarters, 2nd Armored Division, Fort Hood, TX, on 29 March 1977, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge as ordered by Special Court-Martial Order Number 10, issued by Headquarters, 2nd Armored Division, Fort Hood, TX, on 9 February 1976, was affirmed and ordered duly executed.

11.  On 24 May 1977, the applicant was discharged pursuant to his court-martial sentence.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11 (Dishonorable and BCD), with an under other than honorable character of service.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel as a result of court-martial.  The version in effect at the time stipulated the following:

   a. An honorable discharge is a separation from the Army 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 meets 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. 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.  

   c. An enlisted person will receive a BCD pursuant only to an approved sentence of a court-martial imposing a BCD.  The appellate review must be completed and the affirmed sentence ordered duly executed.

13.  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 contends his discharge should be upgraded so he can receive benefits.  He further contends he was subject to racial discrimination during his service at Fort Hood, TX.  His record contains no evidence and he provides no evidence to support this contention.

2.  The applicant was given a bad conduct discharge pursuant to an approved sentence by a special court-martial which was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

3.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Based on the seriousness of his offenses, there is an insufficient basis to grant 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 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20130013404



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