IN THE CASE OF:	  

		BOARD DATE:	  25 July 2014

		DOCKET NUMBER:  AR20130021178 


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).

2.  The applicant states:

	a.  he's had his life in order since his discharge, has been married for 22 years, lived in the same house for about 23 years, and will be 80 years old soon;

	b.  his immaturity, hemorrhagic fever diagnosis with one year to live, and his 1 year hospitalization were major factors that led to his subsequent trouble, less than good attitude, and disrespect for authority.

3.  The applicant provides:

* National Archives (NA) Form 13038 (Certification of Military Service)
* Army Review Boards Agency (ARBA), letter dated 16 September 2013

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's complete military records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973.  It is believed his records were lost or destroyed in that fire.  This case is being considered using the applicant's NPRC reconstructed file.

3.  The NPRC file includes an NA Form 13038 that shows the applicant enlisted in the Regular Army on 28 May 1952.

4.  General Court-Martial Order Number 147, published by Headquarters, Third Army Fort McPherson, GA, dated 30 June 1955, shows that pursuant to the applicant's plea, he was found guilty of being absent without leave from on or about 20 April 1955 to on or about 25 May 1955.

5.  The resultant sentence imposed by the military judge was a BCD, confinement for 9 months, and forfeiture of all pay and allowances.  The court-martial convening authority approved the sentence and ordered that it be executed with the exception of the portion that provided for the BCD.

6.  On 12 July 1955, the U.S. Army Court of Military Review examined the applicant's record of trial, found it to be legally sufficient to support the findings of guilty and the sentence, and affirmed the applicant's conviction.

7.  Headquarters Branch, United States Disciplinary Barracks, Camp Gordon, GA, published Special Orders Number 186, dated 25 November 1955.  It directed the applicant's release from confinement on 10 December 1955, by reason of expiration of sentence.

8.  The reconstructed NPRC file does not include his medical record or any other documents depicting the applicant's medical history or treatment received during his military service.

9.  Army Regulation 635-200 sets forth the basic authority 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.

10.  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 his immaturity and medical condition at the time forms the basis to upgrade his BCD.

2.  The applicant committed misconduct for which a BCD was warranted.  He was appropriately discharged after completion of the appellate process and only 
after his sentence was affirmed by the appropriate appellate court.  His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  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.

4.  In view of the foregoing, there is no basis for granting the applicant's request for either 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)                                         AR20130021178



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ABCMR Record of Proceedings (cont)                                         AR20130021178



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