IN THE CASE OF: 

		BOARD DATE:	    27 March 2014

		DOCKET NUMBER:  AR20130013429 


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, that his bad conduct discharge (BCD) be upgraded.

2.  The applicant states he was given a BCD for an incident he observed.  He contends that he did not participate in the incident.  It was a long time ago.  He was used as the scapegoat.

3.  The applicant provides no additional documentation.

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 22 April 1969, the applicant was inducted into the Army of the United States.  He completed his initial training as a light weapons infantryman.

3.  On 30 August 1969, the applicant departed Fort Dix, New Jersey, for duty in the Republic of Vietnam (RVN).

	a.  On 9 October 1969, he was assigned to Service Battery, 3rd Battalion, 16th Artillery Regiment, 23d Infantry Division for duty as a cannoneer.

	b.  On 8 January 1970, he was advanced to specialist four, pay grade E-4.

4.  General Court-Martial Order Number 7, 23rd Infantry Division, dated 
17 February 1971, shows the applicant was convicted of violating Article 128 (Assault), two charges, by throwing and detonating a fragment grenade near two Soldiers in a manner likely to produce grievous bodily harm.

	a.  His sentence, adjudged on 19 October 1970, included a forfeiture of all pay and allowances, confinement at hard labor for 1 year, and a BCD.

	b.  The convening authority approved the sentence on 17 February 1971.

5.  General Court-Martial Order Number 951, Fort Leavenworth, KS, dated 
21 July 1971, announced that the applicant had been restored to active duty pending completion of the appellate review.

6.  General Court-Martial Order Number 775, Fort Leavenworth, KS, dated 
3 July 1972 announced the sentence had been affirmed.  Article 71(c) having been complied with, the sentence was to be executed.

7.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 25 July 1972.  He received an under conditions other than honorable characterization of service.

8.  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.



9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a provides 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to honorable because he did not participate in the incident.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the final discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant has not provided any documentary evidence or convincing argument showing he did not commit the crime for which he was convicted.  His contentions relate to evidentiary matters which should have been raised and conclusively adjudicated in the judicial and appellate processes.

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 the seriousness of the applicant's misconduct, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the above, the applicant’s request should be denied.



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)                                         AR20130013429



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ABCMR Record of Proceedings (cont)                                         AR20130013429



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