IN THE CASE OF:	  

		BOARD DATE:	  15 July 2014

		DOCKET NUMBER:  AR20130018327 


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, upgrade of his Bad Conduct Discharge (BCD) to an honorable discharge.

2.  The applicant states:

* He does not deny the charges
* He is a changed man
* He is a responsible and productive citizen in his community

3.  The applicant provides:

* Special Orders Number 236, dated 24 August 1973
* Pastor's Letter, (Undated)
* Self-authored Letter, dated 28 August 2013
* Councilman's Letter (Undated)

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 11 August 1969.  He completed training as an Ammunition Storage and Operations Specialist.

3.  On 13 January 1971, the applicant was convicted by a summary court-martial of disobeying a lawful order and of being disrespectful in language toward his superior noncommissioned officer (NCO).

4.  He was convicted by a special court-martial on 28 June 1971 of the following:

* Two specifications of disrespectful behavior toward his superior commissioned officer
* One specification of disrespectful behavior toward his superior NCO
* One specification of disobeying a lawful order from his superior NCO

5.  The applicant accepted nonjudicial punishment on 19 January and 2 March 1972 for being absent from his place of duty of duty.

6.  On 27 September 1972, he was convicted by a general court-martial of disobeying a lawful order and of wrongful possession of 0.08 grams, more or less, of heroin.  He was sentenced to:

* a BCD
* Confinement at hard labor for (6 months)
* Forfeiture of all pay and allowances

7.  On 9 November 1972, the convening authority approved the sentence, and ordered him to be confined in the post stockade at Fort Lewis, Washington, or elsewhere as competent authority may direct, pending completion of appellate review.
`
8.  General Court-Martial Order Number 163, issued by Headquarters, United States Disciplinary Barracks, Fort Leavenworth, KS, dated 15 February 1973, noting that the portion of the sentence pertaining to confinement at hard labor had been served, restored the applicant to duty pending completion of appellate review.

9.  On 27 July 1973, the Commander, U.S. Army Training Center and Fort Ord, CA Staff Judge Advocate was notified that the U.S. Court of Military Appeals denied the applicant's petition for a grant of review.

10.  On 24 August 1973, the applicant was discharged pursuant to his court-martial sentence under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, as a result of a duly reviewed and affirmed general court-martial conviction.  He completed 3 years and 18 days of total active service.

11.  The applicant provides a letter from his councilman and his pastor attesting to his great character and ability to get things done.  He also submits a self-authored letter stating that while he was in the Army he was exposed to and used lots of drugs.  He participated in drug treatment and he no longer participates in drug use.  He is in poor health and he needs health care from the Department of Veterans Affairs because he was exposed to Agent Orange when he was in the Army.

12.  A review of the available records fails to show that the applicant was exposed to Agent Orange while he was in the Army.

13.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that 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 modify the severity of the punishment imposed.

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

   a.  Chapter 11 of the regulation in effect at the time states that a member will be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

   b.  Paragraph 3-7a states 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.
   
   c.  Paragraph 3-7b states 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's contentions have been noted.  His supporting evidence has been considered.

2.  The fact that he is not in good health is not sufficiently mitigating to warrant an upgrade of his discharge.  His records show he was discharged with a BCD as a result of a general court-martial conviction and he has provided no evidence to show the type of discharge he received was erroneous or unjust.

3.  Based on his overall record of service he did not serve honorably or under honorable conditions.  The BCD he received appropriately characterizes his service and it is not severe considering the nature of his offenses.

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 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.

5.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

6.  In view of the foregoing, there is an insufficient basis for granting the applicant an honorable or a general discharge.

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)                                         AR20130018327



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ABCMR Record of Proceedings (cont)                                         AR20130018327



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