BOARD DATE:	  24 June 2014

		DOCKET NUMBER:  AR20130017545 


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.

2.  The applicant states:

	a.  He was 19 years old at the time of the alleged crime.  He was the smallest Soldier in the company and he constantly had to prove himself to his fellow Soldiers.  He was trustworthy and he earned and managed his paycheck to the point he loaned money to other Soldiers.  He had no reason to steal from his fellow Soldiers.

	b.  He did his share of defending himself (striking his 6'3" roommate in the face after he flipped his mattress over, to walking off duty after his sergeant made an off-colored joke about his size and what he was going to do to him if he caught him downtown).  He left his position to see which one of them would be able to tell the story about what the sergeant did, if anything.

	c.  There were a total of 7 black Soldiers assigned to his battery in Germany.  In mid November 1966, he was approached by one of the Soldiers and asked if he was interested in purchasing some equipment.  He told the Soldier no, but he would ask the other Soldiers.  Two Soldiers purchased the equipment and they were stopped by military police for speeding.  Their car was searched and the stolen equipment was found in their possession.  The next day, the applicant was arrested for larceny.

	d.  He knew nothing about the exchange.  He claims he was wrongfully accused of a crime he did not commit.  His proceedings were unfair and his legal representative failed to draw his attention to the provisions or explain the implications to him.  The three individuals who were involved and could have vindicated him of these charges never testified at his trial and they were never given a lie detector test.  

	e.  He prided himself as being a "top-notch lifer."  He had no plans of being forced out of the Army for a crime he did not commit.  He has tried to live a productive, respectful life as a God-fearing citizen and not allow this unjust event to haunt him.  He has been treated by several doctors in an effort to sleep for more than 3 hours per night and to rid his mind of the stressful thought of someone accusing him of another horrible crime and this time he is put to death.  

3.  The applicant provides:

* General Court-Martial Order (GCMO) Number 964, dated 27 October 1967
* GCMO Number 5, dated 24 March 1967
* DA Form 20B (Insert Sheet to DA Form 20)
* DA Form 20 (Enlisted Qualification Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 was born on 10 January 1947.  He enlisted in the Regular Army on 5 October 1964 for a period of 3 years.  He completed his training and was awarded military occupational specialty 94B (cook).

3.  Between February and October 1966, nonjudicial punishment (NJP) was imposed against him on four occasions for:

* failure to repair
* assault
* disobeying a lawful order and possessing a concealed weapon
* being drunk and disorderly 

4.  On 7 February 1967, in accordance with his pleas, he was convicted by a general court-martial of unlawful entry with intent to commit larceny (two specifications) and larceny (two specifications).  On 24 March 1967, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 1 year.

5.  On 31 July 1967, the Office of The Judge Advocate General of the Army affirmed the findings of guilty and the sentence.

6.  On 23 October 1967, the U.S. Court of Military Appeals denied the applicant's petition for a grant of review.

7.  On 27 October 1967, the convening authority ordered the dishonorable discharge to be executed.

8.  On 2 November 1967, the Secretary of the Army changed the applicant's dishonorable discharge to a bad conduct discharge.

9.  On 20 November 1967, he was issued 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 2 years, 2 months, and 13 days of total active service with 47 days of time lost.

10.  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.

11.  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.

12.  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 he was 19 years old age at the time of the alleged crime.  However, age is not a sufficiently mitigating factor.  He was nearly 
18 years old when he enlisted and successfully completed training.  In addition, he had completed over 2 years of service prior to his misconduct.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

2.  His contentions that he knew nothing about the exchange, he was wrongfully accused of a crime he did not commit, his proceedings were unfair, his legal representative failed to draw his attention to the provisions or explain the implications to him, and the three individuals who were involved and could have vindicated him of these charges never testified at his trial, relate to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.

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 record of service included four NJPs, one general court-martial conviction, and 47 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)                                         AR20130017545



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ABCMR Record of Proceedings (cont)                                         AR20130017545



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