BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140000812 


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 a general discharge.

2.  He states that all the evidence concerning the BCD was in the case.  His discharge should be upgraded because he deserves this.

3.  He provides his 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.  On 4 December 1969, he was convicted by a general court-martial of:

* Charge I, Specification:  Stealing 800 rounds of .45 caliber ammunition, a value of $48.00, the property of the United States Government on 
19 September 1969
* Charge II, Specification:  Wrongfully having in his possession one bag of marijuana on 19 September 1969
* Charge III, Specification:  Wrongfully having in his possession 27 tablets of LSD on 19 September 1969
   
4.  Additional Charges:
   
* Charge I, Specification:  Escaping from lawful confinement at the Fort Lewis, WA stockade on 17 October 1969
* Charge II, Specification:  Being absent without authority from his place of duty on 17 October 1969 from 0830 to 1900 hours

5.  The court sentenced him to a forfeiture of all pay and allowances, confinement at hard labor for 3 years, and a dishonorable discharge.  The convening authority set aside and ordered the findings of guilty of Charge II and its Specification and Charge III and its Specification be dismissed.  Only so much of the sentence as provided for a BCD, forfeiture of all pay and allowances due on and after the date of the convening authority's action, confinement at hard labor for 6 months, and reduction to the lowest enlisted grade was approved.  The U.S. Army Court of Military Review affirmed the findings and sentence on
6 May 1970.

6.  His DD Form 214 shows he was discharged on 20 May 1970 with an under other than honorable conditions character of service under the provisions of Army Regulation 635-200 with the issuance of a DD Form 259A (Bad Conduct Discharge Certificate).  He completed 1 year and 7 months of total active service with 244 days of time lost time from 19 September 1969 to 20 May 1970.

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

   a.  Chapter 3 establishes policy and procedures for separating members with a dishonorable or BCD.  It provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence must be ordered duly executed.

	b.  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.

	c.  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.-

8.  Court-martial convictions stand as adjudged or as 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 was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

2.  He was given a BCD pursuant to an approved sentence of a general court-martial.  The appellate review was completed and sentence affirmed.  All requirements of law and regulation were met and his rights were fully protected.

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.  Therefore, given his offense and absent any mitigating factors, the type of discharge directed and the reasons 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 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)                                         AR20140000812





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ABCMR Record of Proceedings (cont)                                         AR20140000812



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