IN THE CASE OF:	  

		BOARD DATE:	  5 August 2014

		DOCKET NUMBER:  AR20130020527 


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 to honorable.

2.  The applicant states he received an honorable discharge in 1956.  He was always a good Soldier when he was stationed overseas, but he drank a lot when he was in the United States.  His reasons for being absent without leave (AWOL) were always for family problems.  He spent 10 years in the Army.  He is now 75 years old and every day he regrets being AWOL.

3.  The applicant provides his DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 21 February 1956.

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.  Having prior active service, the applicant enlisted in the Regular Army on 15 October 1958.  On 18 November 1960, he was assigned to the 72nd Engineer Company, Fort Benning, GA.

3.  On 7 November 1961, he pled guilty to and was convicted by a special court-martial of one specification of being AWOL from 3 March to 5 September 1961.  He was sentenced to confinement for 6 months and forfeiture of $50.00 for 1 month.  He was subsequently confined at Camp Leroy Johnson, LA.

4.  On 30 October 1964, he was assigned to the 551st Military Police Company, Fort Polk, LA.

5.  On 22 December 1965, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from his assigned unit from 11 to 20 December 1965.

6.  On 22 December 1965, he received an official letter of reprimand from his immediate commander.  In the letter of reprimand, his commander stated he was being reprimanded for violating the UCMJ.  He failed to manifest an acceptable level of emotional control, adaptability, maturity, and dependability in his personal life in that he failed to seek professional assistance with his grave personal and financial problems.  His strong but misguided sense of responsibility to his spouse and children must be executed concurrently with his other obligations.  Future violations and indication of immature and impulsive judgment on his part would most certainly result in sterner disciplinary action.

7.  On 17 January 1966, he pled guilty to and was convicted by a general court-martial of one specification each of being AWOL from 14 December 1964 to 23 April 1965 and from 30 May to 19 July 1965.  He was sentenced to a reprimand by the court-martial convening authority.

8.  On 5 February 1966, he received NJP under the provisions of Article 15, UCMJ, for failing to report to his appointed place of duty at the proper time.

9.  On 15 August 1966, he pled guilty to and was convicted by a general court-martial of one specification of being AWOL from 16 February to 17 May 1966.  He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, confinement for 1 year, and reduction to private (PVT)/E-1.  He was subsequently confined at Fort Leavenworth, KS.

10.  The U.S. Army Court of Military Review subsequently affirmed the approved findings and only so much of the sentence that provided for a bad conduct discharge, forfeiture of all pay and allowances on and after the date of the convening authority's action, confinement for 9 months, and reduction to 
PVT/E-1.

11.  Headquarters, Fort Leavenworth, General Court-Martial Order Number 710, dated 31 October 1966, shows the applicant's sentence having been affirmed and complied with, the convening authority ordered his bad conduct discharge executed.

12.  On 14 November 1966, he was discharged accordingly.  He completed 6 years, 4 months, and 23 days of net active service during this period and had 682 days of lost time due to being AWOL and/or in confinement.

13.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial (separation program number 292).  His service was characterized as under other than honorable conditions and he was issued a Bad Conduct Discharge Certificate.

14.  On 6 January 1989, the Army Discharge Review Board denied his request for an upgrade of his discharge to honorable.

15.  Army Regulation 635-200, 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.

16.  Army Regulation 635-200, 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.

17.  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 shows the applicant's trial by a general court-martial was warranted by the gravity of the offense charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.

2.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The applicant contends his discharge should be upgraded because he was AWOL for family reasons.  However, that is not a justifiable reason for being AWOL.  His records show he was reprimanded for not seeking assistance with his family problems and advised he would face sterner disciplinary action for continuing to violate the UCMJ.  He continued to be AWOL and there is no evidence that shows he sought assistance in dealing with family problems.

4.  His records show he received NJP on two occasions for being AWOL and failing to report, he was convicted by a special court-martial and a general court-martial for being AWOL on three separate occasions, and he was AWOL again.  At the time of his discharge, he had almost 2 years of lost time due to being AWOL or in confinement.

5.  After a review of his record of service, it is clear he did not meet the criteria for an honorable discharge or any other character of service than that which he received.  Therefore, he is not entitled to the 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 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)                                         AR20130020527



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ABCMR Record of Proceedings (cont)                                         AR20130020527



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