IN THE CASE OF:
BOARD DATE: 9 October 2014
DOCKET NUMBER: AR20140003905
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 his bad conduct discharge (BCD) be upgraded to a general discharge (GD) or honorable discharge (HD).
2. The applicant states his trial was unjust. His lawyer did not speak up at the trial.
3. The applicant provides no supporting documentation.
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 enlisted in the Regular Army on 21 February 1966, completed training, and was awarded the military occupational specialty 11B (Light Weapons Infantryman).
3. The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on
* 4 December 1966, for being drunk in public
* 3 January 1967, for being absent from his place of duty and disobeying a direct order from a noncommissioned officer
* 6 February 1967, for being absent without leave (AWOL)
* 9 February 1967, for being AWOL
* 13 March 1967, for two specifications of breaking restriction, wrongfully possessing an illegal pass, and being drunk in public
4. On 8 May 1967, in accordance with his plea, a general court-martial found the applicant guilty of two specifications of theft of property from the European Exchange System and assault with a dangerous weapon. The court-martial panel recommended confinement for five years, forfeiture of all pay and allowances, and a dishonorable discharge (DD).
5. The general court-martial authority approved findings and sentence of the court-martial but reduced the confinement to 1 year. The record of trial was referred for appellate review.
6. On 3 January 1968, the Secretary of the Army directed that the applicant's sentence of a DD be changed to a BCD.
7. Also on 3 January 1968, the applicant's request for restoration to duty and clemency on the sentence to confinement was denied.
8. Article 71(c) of the Uniform Code of Military Justice having been complied with, the BCD was ordered executed and the applicant was accordingly discharged on 29 January 1968 with a BCD. He had 1 year, 1 month, and 11 days of creditable service with 304 days of lost time. He is not shown to have received any personal awards, decorations, commendations, citations, or recommendations.
9. Army Regulation 635-200 (Enlisted Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. As in effect at the time of the applicant's service it provided that:
a. An honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier's service has met the standards of acceptable conduct and performance of duty.
b. A general discharge is a separation under honorable conditions issued to a Soldier whose military record is satisfactory but not so meritorious as 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 has not provided and the record does not contain any evidence that the applicant's lawyer failed to properly represent him before the court-martial. In fact, his lawyer appears to have successfully argued that a DD was not appropriate, resulting in the issuance of a BCD in lieu of a DD.
2. The applicants contention relates to evidentiary and procedural matters that were finally and conclusively adjudicated in the court-martial appellate process, and would furnish no basis for recharacterization of the discharge.
3. In addition to the general court-martial conviction, the applicant also received NJP on five occasions. These factors combine to clearly show the applicant's characterization of service does not meet the standards for either an HD or a GD.
4. In view of the foregoing, there is no basis for granting the applicant's 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 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) AR20140003905
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ABCMR Record of Proceedings (cont) AR20140003905
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