BOARD DATE:	  29 May 2014

		DOCKET NUMBER:  AR20130016913 


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 an honorable discharge. 

2.  As new issues, the applicant requests, in effect, that his Basic Allowance for Quarters (BAQ) be updated from 1974 and that "his medical condition with his leg" be considered. 

3.  The applicant states, in effect:

* the trial was unfair; there was no hearing for his discharge
* he never received any money between 1974 to 1975 for his dependents 
* he was discharged with no medical help from the military
* in July 1974, he volunteered to help company members but his lieutenant arrived and gave him an order to go inside
* since there was thunder, lightning, and rain at the time everyone had orders to stop but his lieutenant did not respond
* he was not disrespectful toward his lieutenant and this was not the first time this lieutenant treated him that way
* his lieutenant promised him jail time at Fort Leavenworth, KS and he even mentioned mutiny 
* there was cross burning in the company at the time and he mentioned that to the Post Commander but it was ignored 
* he was advised to take whatever and leave; he was ultimately court-martialed, received excess leave, and was discharged 

4.  The applicant provides:

* DA Form 31 (Request and Authority for Leave)
* DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States)
* Review of the Staff Judge Advocate
* Letter to the U.S. Army Reserve Components Personnel and Administration Center
* Congressional correspondence
* DA Form 2496-1 (Disposition Form)

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 AR20050015038, on 8 August 2006.  

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration since his request was neither received within 1 year of the original Board's decision nor does it contain new evidence.  However, his new issues are tied to the discharge action.  His case is being reconsidered by the Board as an exception to policy. 

3.  The applicant's records show he enlisted in the Regular Army on 16 July 1974 and he held military occupational specialty 76Y (Armorer/Unit Supply Specialist).  He was promoted through the ranks to specialist four/E-4. 

4.  He was awarded or authorized the National Defense Service Medal and he was assigned to the 426th Supply and Service Battalion, 101st Airborne Division, Fort Campbell, KY.  

5.  On 2 May 1975, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty.  

6.  On 20 December 1976, before a special court-martial, he was convicted of:

* one specification of being absent without leave (AWOL) from 15 July to 4 August 1976
* four specifications of willfully disobeying lawful orders
* one specification of striking a commissioned officer
* one specification of behaving disrespectfully toward an officer 
7.  The court sentenced him to a forfeiture of $249.00 pay for 2 months, confinement at hard labor for 2 months, and the issuance of a bad conduct discharge.

8.  On 4 March 1977, the convening authority approved the sentence, and, except for the bad conduct discharge, ordered it executed.  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.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in his court-martial.  

10.  On 10 February 1978, the U.S. Court of Military Appeals denied his petition for a grant of review of his case. 

11.  Special Court-Martial Order Number 13, issued by Headquarters, 101st Airborne Division, Fort Campbell, KY, on 23 February 1978, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge as ordered by Special Court-Martial Order Number 28, issued by the same Headquarters, on 4 March 1977, was ordered duly executed.

12.  On 3 March 1978, he was discharged pursuant to his court-martial under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of chapter 11 of Army Regulation 635-200 as a result of court-martial, and he was given a bad conduct character of service.  He completed 3 years, 5 months, and 3 days of active service and he had 75 days of lost time and 35 days of excess leave. 

13.  On 28 July 1981, the Army Discharge Review Board (ADRB) considered his request for a change in his discharge characterization and/or clemency; however, it found no basis for granting relief and denied his request.  The ADRB voted unanimously to deny his request.

14.  On 8 August 2006, the ABCMR also considered his petition for an upgrade of his discharge.  This Board voted unanimously to deny him an upgrade of his discharge.  

15.  His pay records are not available for review with this case.  He did not provide Leave and Earnings Statements (LES) or correspondence with the Defense Finance and Accounting Service (DFAS) regarding monetary claims or denial of such claim.   
16.  His medical records are not available for review with this case.  He did not explain what medical condition is related to his leg and he provides no medical documents in relation to this claim.  

17.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

   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.

   c. Paragraph 3-11 provides that a Soldier will 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.

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 raises the issues of upgrading his discharge (reconsideration), BAQ entitlements, and a medical condition related to his leg. 


2.  With respect to the discharge upgrade: 

	a.  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.

	b.  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.  Given the applicant's undistinguished record of service and 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.

	c.  His contention that he had no hearing for his discharge is without merit.  The court-martial that sentenced him to a bad conduct discharge was his hearing.

	d.  Based on his record of indiscipline (AWOL, NJP, and a court-martial conviction), the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

3.  With respect to the BAQ contention, there is insufficient evidence to address the applicant's pay issue:

	a.  First, the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The ABCMR is not an investigative agency.  In order for the Board to properly consider the BAQ issue, the applicant should clarify the specific record he seeks to have corrected, the circumstances of any error or injustice, and provide supporting evidence.

	b.  Secondly, Army Regulation 15-185, Section II, paragraph 2-5, the regulation under which this Board operates, states the ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice.  There is no evidence the applicant submitted his request to DFAS - the agency responsible for paying military personnel - and he was denied relief.

	c.  Lastly, a service member claiming additional pay and allowances previously accrued but not paid, has the burden of proving that he/she was not paid the pay and allowances claimed.  The claim is disallowed where government records necessary to either justify or refute it have been destroyed or become unavailable due to the lapse of time, and there is no other documentation available from any source to establish the liability of the United States.  Furthermore, Title 31, U.S. Code, section 3702, also known as the Barring Statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.  Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.  

4.  With respect to the medical condition related to his leg, it is unclear if the applicant means he did not receive medical attention for a leg injury during his military service or a previous leg injury was aggravated by service.  It is equally unclear if he had sustained a leg injury that rendered him unfit for military service. Regardless, he does not support his contention with any medical evidence.  In view of the foregoing, there is insufficient evidentiary basis for granting the applicant's requested relief in relation to the medical condition with his leg.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_X_______  ___X____  __X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  With respect to the discharge upgrade, 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 to amend the decision of the ABCMR set forth in Docket Number AR20050015038, dated 8 August 2006.


2.  With respect to the new issues (BAQ and medical condition of his leg), 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)                                         AR20130016913



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ABCMR Record of Proceedings (cont)                                         AR20130016913



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