BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140000829 


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 a general discharge. 

2.  The applicant states he thinks it is wrong to punish someone forever just because he was young and stupid at one point in his life.

3.  The applicant provides no additional evidence.

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 was born on 8 August 1952.  He enlisted in the Regular Army on 27 March 1972, at the age of 19 years, 7 months, and 20 days.

3.  Evidence shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

   a.  13 July 1972, for being derelict in the performance of his duties by failing to remain awake while performing duties of Barracks Orderly;

   b.  14 July 1972, for wrongfully possessing one ounce, more or less, of marijuana; 

   c.  9 February 1973, for failing to go at the time prescribed to his appointed place of duty;

   d.  17 May 1973, for being absent from duty on 20 April 1973 and for failing to go at the time prescribed to his appointed place of duty on 11 May 1973;

   e.  20 July 1973, for absenting himself from his place of duty from 15 to        24 June 1973;

   f.  24 July 1973, for being absent from his place of duty from 26 to 30 June and from 3 to 16 July 1973; and 

   g.  14 January 1974, for being absent from his place of duty from 19 to          20 October 1973; for failing to go to his prescribed place of duty on 25, 26 and
29 October 1973; for disobeying a lawful order on 29 October 1973; for using disrespectful language toward a superior noncommissioned officer on 26 October 1973; and for making a false official statement on 29 October 1973.

4.  His record contains Special Court-Martial Order Number 97, issued by Headquarters, 1st Cavalry Division, dated 9 October 1974, which shows he pled not guilty but was found guilty of violating two specifications of Article 128 of the UCMJ for:

   a.  committing assault upon another Soldier by shooting him in the right side of the abdomen with a .38 caliber pistol, a means likely to produce grievous bodily harm; and 

   b.  unlawfully attempting to strike a different Soldier in his body with a chair.

5.  On 24 July 1974, the following sentence was adjudged:  to be discharged from service with a bad conduct discharge, to be confined at hard labor for 100 days, to forfeit $200.00 pay for 3 months, and to be reduced to the rank/grade of private (PVT)/E-1.

6.  His record contains Special Court-Martial Order Number 197, issued by Headquarters, U.S. Disciplinary Barracks, dated 14 April 1975, that states in a special court-martial case of the applicant, the sentence to a bad conduct discharge, forfeiture of $200.00 pay for 3 months, and confinement at hard labor for 100 days, and reduction to the rank/grade of PV1/E-1 adjudged on 24 July 1974, as promulgated in Corrected Special Court-Martial Order Number 97, issued by Headquarters, 1st Cavalry Division, Fort Hood, TX, dated 9 October 1974, has been affirmed.  Article 71(c) having been complied with, the sentence will be duly be executed.  

7.  His record contains a DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 7 May 1975 under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 11, as a result of court-martial with a bad conduct discharge.  He completed 2 years, 8 months, and 29 days of creditable active service with 132 days of lost time.

8.  On 20 May 1977, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

9.  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.

10.  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.
 
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's trial by a special court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted. 



2.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant 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.  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.

4.  His contention that his misconduct was due, in part, to being young and stupid  is not supported by sufficient evidence.  Records show the applicant was well over 19 years of age at the time of his first offense.  There is no evidence indicating the applicant was less mature than other Soldiers of the same age who successfully completed their military service.  In any case, such a contention would have or should have been raised during the appellate review.  

5.  Based on his record of misconduct which included numerous instances of NJP and conviction by special court-martial, and after a careful review of the applicant's entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, he is not entitled to an upgrade of his 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)                                         AR20140000829



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ABCMR Record of Proceedings (cont)                                         AR20140000829



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