BOARD DATE:	  19 June 2014

		DOCKET NUMBER:  AR20130019417 


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 (BCD) to a general discharge (GD).

2.  He states:

	a.  He should have received a GD instead of a BCD.  He was a young, wild, troubled child who started drinking at age 14.  The Army recruiter knew this because he was recruited from jail in 1972.  A lot of inmates were recruited from jail to join the Army in 1972, and he was one of them.  He was facing 3 years in the penitentiary or 2 years in the Army.  He enlisted in the Army for 2 years in June 1972 at 19 years of age.  

	b.  When he arrived in Germany, he became addicted to heroin.  He was also addicted to alcohol.  He was discharged in July 1975 with a BCD for assaulting a plain-clothes military policeman in Germany.  He isn't trying to minimize the crime, but it was common for him to become violent when approached by unknown people because of the alcohol and heroin.  Alcohol and heroin truly ruined his life, and he fully accepts his responsibility for his decisions and the mistakes he has made.  

	c.  Since 2008, he has been taking various medications to calm him down that he now believes he should have been taking when he joined the Army.  In 2008, he had surgery for prostate cancer and he is presently receiving treatment for hepatitis C.  

	d.  He would like to be buried in Jefferson Barracks with his father and brother, but can't because of his BCD.  

3.  He provides his DD Form 214 (Report of Separation from Active Duty) and information on his prescription medications.  

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.  A Federal Bureau of Investigation record, dated 14 July 1972, shows that, prior to enlisting, the applicant had been arrested several times on charges including suspected automobile theft, assault, and burglary.  The document shows he was last arrested by civil authorities on 14 February 1972 for suspected automobile theft.  

3.  On 16 June 1972, he enlisted in the Regular Army at 18 years of age.  He completed initial entry training, and he was awarded military occupational specialty 76P (Stock Control and Accounting Specialist).  

4.  On 10 January 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave from 7 to 10 January 1973.

5.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he was assigned to a unit in Germany on 4 June 1973.  

6.  On 22 August 1973, he accepted NJP for:

* being absent from his appointed place of duty on 9 and 10 August 1973
* an unspecified matter related to work call formation on 16 August 1973

7.  On 8 January 1974, Headquarters, 123rd Maintenance Battalion, issued Summary Court-Martial Order Number 3, which shows that, pursuant to his pleas, he was found guilty of:

* wrongfully possessing one ounce, more or less, of marijuana, a controlled substance, on 16 November 1973
* assaulting two German national females on 16 November 1973

He was sentenced to reduction to private/E-1, forfeiture of $242.00 pay per month for one month, and restriction for 60 days.

8.  On 19 February 1974, his company commander imposed NJP against him for absenting himself from his place of duty on 8 February 1975.  Upon appeal, his punishments were suspended for 180 days. 

9.  On 2 September 1974, Headquarters, 1st Armored Division, issued Special Court-Martial Order Number 138, which shows he pleaded not guilty but was found guilty of:

* assaulting a military policemen in the performance of his duty by striking him in the head with his shoe
* attempting to steal stereo equipment from fellow Soldiers with a total value of about $350.00
* wrongfully entering a room, the property of the United States Government, with the intent to commit larceny therein

He was sentenced to be discharged from the service with a BCD and confinement at hard labor for 2 months.  The sentence was approved.  

10.  On 26 March 1975, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  

11.  On 8 July 1975, Headquarters, U.S. Army Training Center Engineer and Fort Leonard Wood issued Special Court-Martial Order Number 42 ordering the execution of the affirmed sentence.

12.  On 11 July 1975, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11 (Dishonorable and BCD), and he was issued DD Form 259A (Bad Conduct Discharge Certificate).  

13.  A review of his service medical records failed to reveal any evidence indicating he was addicted to alcohol or heroin.  
14.  He provides information sheets for four prescription medications.  The documents show dates in September and October 2013, and they show he has been prescribed medication used to treat depression, insomnia, mental/mood disorders, and itching caused by allergies. 

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

	a.  Chapter 11 of the version in effect at the time provided that a Soldier would be given a punitive discharge (dishonorable discharge or BCD) pursuant only to an approved sentence of a general or special court-martial.  The appellate review must have been completed and the affirmed sentence ordered duly executed.

	b.  Paragraph 3-7b provides that a GD 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.

16.  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 does not support the applicant's request for an upgrade of his BCD to a GD.

2.  He was convicted of assault, attempting to steal from fellow Soldiers, and wrongful entry with the intent to commit larceny.  His conviction and sentence by special court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  He was not given his BCD until after his conviction and sentence had been reviewed and affirmed by the U.S. Army Court of Military Review.  

3.  His statements concerning his age at the time of his enlistment, the circumstances under which he enlisted, his addictions, his current medical conditions, and his desire to be buried with his father and brother are noted.  However, none of these mitigate the seriousness of the offenses for which he was tried and convicted.  

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.  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.

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)                                         AR20130019417



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ABCMR Record of Proceedings (cont)                                         AR20130019417



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