IN THE CASE OF:	  

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140005343 


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) to an honorable or general discharge.

2.  He states he requested emergency leave on four different occasions.  His mom and dad were getting a divorce and things were really bad at home.  He already had 18 months of foreign service.

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.  The applicant enlisted in the Regular Army on 26 April 1966 for a period of 
3 years.  He served in Okinawa from 4 December 1966 to 2 June 1968 (a period of 1 year and 6 months).

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on three separate occasions for the following offenses:

* operating a civilian automobile without a valid operator's permit or registration certificate
* wrongfully appropriating one amplifier, a value of about $140, from a specialist four and pawning it for $40 for which he received $25
* being instructed by a staff sergeant to go to the motor pool to which he gave a disrespectful response

4.  On 16 September 1966, he was convicted, pursuant his pleas, by a special court-martial of being absent without leave (AWOL) from 16 July to 29 August 1966.  He was sentenced to confinement at hard labor for 3 months and a forfeiture of $60 pay for 3 months.

5.  On 21 May 1970, he was convicted, pursuant to his pleas, by a special court-martial of being AWOL from 1 December 1968 to 16 March 1970.  He was sentenced to a forfeiture of $25 pay for 6 months, reduction to private/E-1, and discharged from the service with a BCD.  On 28 July 1970, the convening authority approved the sentence.  

6.  On 29 July 1970, he was convicted, pursuant his pleas, by a summary court-martial of being AWOL from 5 to 13 July 1970.  He was sentenced to a forfeiture of $50 pay for 1 month and to perform hard labor without confinement for 
30 days.

7.  On 17 September 1970, the U.S. Army Court of Military Review affirmed the findings of guilty.

8.  On 10 October 1970, his BCD was ordered executed in Special Court-Martial Order Number 307 issued by Headquarters, U.S. Army Training Center, Infantry, Fort Ord, CA.  

9.  On 13 October 1970, he was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 11, by reason other than desertion (court-martial).  He completed 3 years and 3 days of total active military service and he had 531 days of lost time.


10.  Army Regulation 635-200 sets forth the basic authority for 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.

	c.  Paragraph 3-11 states 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 ordered duly executed.

11.  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 statements regarding his personal family problems are acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL) which led to his discharge.  His personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

2.  His service record shows he received three Article 15s, a special court-martial conviction, a summary court-martial conviction, and a record of 531 days of lost time.

3.  He was also convicted by a special court-martial of being AWOL for over 400 days.  As a result, he was sentenced to receive a BCD.  His trial by court-martial was warranted by the gravity of the offense charged.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

4.  Based on the seriousness of the misconduct for which he was convicted, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting his 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)                                         AR20140005343



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ABCMR Record of Proceedings (cont)                                         AR20140005343



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