IN THE CASE OF:	  

		BOARD DATE:	  6 May 2014

		DOCKET NUMBER:  AR20130015033 


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, an upgrade of his bad conduct discharge.

2.  The applicant states:

* his sentence was remitted on 28 March 1968
* he wants his name cleared for himself and his family
* this is the only stain he has against his record
* due to family circumstances he felt the need to find his mother
* he did not know where his mother was, and he was afraid his father had killed her
* he did not see his mother until after he was put in the stockade

3.  The applicant provides:

* letter, dated 28 March 1968, from The Adjutant General
* Bad Conduct Discharge Certificate

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 18 February 1966 for a period of 3 years.  He completed his training and was awarded military occupational specialty 67A (aircraft maintenance crewman).    

3.  On 1 November 1966, he was convicted by a special court-martial of two specifications of being absent without leave (AWOL) from 1 July 1966 to 20 July 1966 and from 30 July 1966 to 17 October 1966.  He was sentenced to be confined at hard labor for 5 months and to forfeit $60.00 pay for 5 months.  On 
4 November 1966, the convening authority approved the sentence.

4.  On 22 August 1967, he was convicted by a general court-martial of desertion from 16 December 1966 to 18 July 1967 and violating the conditions of parole (leaving the limits of the Fort McPherson Military Reservation).  He was sentenced to be discharged from the service with a bad conduct discharge, to forfeit all pay and allowances, and to be confined at hard labor for 12 months.  On 19 September 1967, the convening authority approved the sentence.

5.  On 15 November 1967, the Office of The Judge Advocate General of the Army affirmed the findings of guilty and the sentence.

6.  On 29 December 1967, the convening authority ordered the bad conduct discharge to be executed.

7.  On 15 January 1968, he was discharged with a bad conduct discharge under the provisions of Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharge) for conviction by a general court-martial.  He had served 4 months and 23 days of total active service with 
544 days of time lost.

8.  On 28 March 1968, the unexecuted portion of the sentence published in his special court-martial order and the unexecuted portion of the sentence to confinement as promulgated in his general court-martial order were remitted by the Secretary of the Army.      

9.  Army Regulation 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges.  Paragraph 1b of this regulation states that an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.

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

	a.  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.  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.

11.  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 evidence of record supports the applicant's contention that his sentence was remitted on 28 March 1968.  Evidence shows clemency was granted and the unexecuted portion of the sentence published in his special court-martial order and the unexecuted portion of the sentence to confinement as promulgated in his general court-martial order were remitted by the Secretary of the Army on 
28 March 1968.      



2.  He implies he left his unit due to family problems.  However, there is no evidence he sought assistance from his chain of command or chaplain in resolving his family problems within established Army procedures prior to leaving (desertion).   

3.  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 discharge appropriately characterizes the misconduct for which the applicant was convicted.

4.  His brief record of service included one special court-martial conviction, one general court-martial conviction for desertion, and 544 days of time lost.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

5.  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 therefore 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 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)                                         AR20130015033



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ABCMR Record of Proceedings (cont)                                         AR20130015033



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