IN THE CASE OF:  

		BOARD DATE:  20 November 2014	  

		DOCKET NUMBER:  AR20140003858 


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 that his bad conduct discharge (BCD) be upgraded to an honorable discharge.

2.  He states that he chose the wrong course of action to deal with marital problems at home.  He failed to reach out for help with his marital problems back then and has regretted this action ever since.  He asks that his prior service be considered by the Board when determining whether or not to upgrade his discharge.

3.  He 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 inducted into the Army of the United States on 15 August 1961.  He was honorably discharged on 17 July 1962 for the purpose of immediate enlistment in the Regular Army (RA).

3.  He enlisted in the RA on 18 July 1962.  He served in Greenland from 10 October 1963 through 18 September 1964.  He was honorably discharged on 2 December 1964 for the purpose of immediate enlistment in the RA.

4.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code Military Justice (UCMJ) on 9 January 1965 for violating Article 86, UCMJ by departing his unit in an absent without leave (AWOL) status from 17 to 30 December 1964.

5.  Special Court-Martial Order (SPCMO) Number 397, Headquarters, Fort Sheridan, IL, dated 3 September 1965, shows the applicant was found guilty of violating Article 86, UCMJ by departing his unit in an AWOL status on 22 April 1965 and remaining so absent until he was apprehended on 23 July 1965.

6.  General Court-Martial Order (GCMO) Number 22, Headquarters, Fort Riley, KS, dated 3 September 1965, shows the applicant was found guilty of violating Article 86, UCMJ by departing his unit in an AWOL status on 14 October 1965 and remaining so absent until he was apprehended on 28 November 1966.  As a result, he was sentenced to forfeit all pay and allowances; to be confined at hard labor for one year; and to be discharged from the service with a bad conduct discharge.  The sentence was adjudged on 16 February 1967 and approved on 21 March 1967.  The Board of Review considered the applicant's case and affirmed the findings and only so much of the sentence as provides for a bad conduct discharge, total forfeitures, and confinement at hard labor for ten months, on 4 April 1967.

7.  GCMO Number 399, published by Headquarters, Fort Leavenworth, KS, dated 29 May 1967, shows the sentence was finally affirmed.  The provisions of Article 71(c) having been complied with, the BCD was ordered to be executed.

8.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 12 June 1967.  This form shows he was credited with 753 days of time lost due to AWOL and confinement.  This form also shows his character of service as "Under conditions other than honorable."

9.  Army Regulation 635-200:

	a.  Paragraph 3-11 provides that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence 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.

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's request is duly noted.  However, it is not sufficiently mitigating to absolve his misconduct during his period of service.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged during his last enlistment.  His conviction and discharge were effected in accordance with applicable law and regulations.

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.
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)                                         AR20140003858





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ABCMR Record of Proceedings (cont)                                         AR20140003858



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