IN THE CASE OF:  	  

		BOARD DATE:  12 November 2014	  

		DOCKET NUMBER:  AR20140005424 


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, in effect, upgrade of his under other than honorable conditions discharges. 

2.  The applicant states the picture painted of him before and after service is uncharacteristic.  In addition, he did not have a civilian lawyer and his military lawyer was limited because he was enlisted as well.

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 enlisted in the Regular Army on 6 December 1972.

3.  Evidence shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on          11 August 1973 for absenting himself from his unit, without authority, from         22 August to 30 August 1973.  

4.  Special Court-Martial (SPCM) Order Number 18, issued by Headquarters,        V Corps, dated 13 March 1974, shows the applicant, pursuant to his pleas, was found guilty of the following charges and specifications of violating the indicated Articles of the UCMJ:

   a.  Article 92 - for violating a lawful general regulation on or about 20 October 1973, by having in his possession a switchblade knife.

   b.  Article 128 - for assaulting a Soldier on or about 20 October 1973, thereby intentionally inflicting grievous bodily harm; for striking a Soldier in the head with his hand; and for assaulting a Soldier on 25 November 1973.

   c.  Article 134 - for on or about 20 October 1973, wrongfully communicating a threat to a Soldier; and, on 26 November 1973, wrongfully communicating a threat to a superior noncommissioned officer.

   d.  Article 91 - for willfully disobeying a lawful order from a superior noncommissioned officer.

5.  The approved sentence forfeiture of $217.00 per month for five months; confinement at hard labor for five months; and to be discharged from service with a bad conduct discharge (BCD).  The sentence was adjudged on 22 January 1974.  

6.  On 20 May 1975, SPCM Order Number 34, issued by Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, GA, directed that, Article 71c of the UCMJ having been complied with, the BCD portion of the sentence be duly executed.  On 11 June 1975, the applicant was discharged accordingly.

7.  His DD Form 214 (Report of Separation from Active Duty) shows that he was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 11, as a result of court-martial.  He completed a total of 2 years and 24 days of creditable active military service and accrued 162 days of time lost.



8.  On 14 September 1976, the applicant once again enlisted in the Regular Army.  His record contains a DD Form 1966 (Application for Enlistment - Armed Forces of the United States), dated 1 September 1976.  The applicant indicated in item 26a (Military Service) that he had never been in the Regular, Reserve or National Guard of the United States.

9.  He accepted NJP under the provisions of Article 15 of the UCMJ on 8 June 1977 for willfully disobeying a lawful order from his superior noncommissioned officer and for wrongfully possessing two grams, more or less, of marijuana in hashish form.

10.  On 29 August 1977, the Army Discharge Review Board determined that he had been properly discharged from his 1975 separation.

11.  Summary Court-Martial Order Number 6, issued by Headquarters, 3rd Supply and Transport Battalion, dated 13 December 1977, shows the applicant, pursuant to his pleas, was found guilty of the charge and specifications of violating Article 90 of the UCMJ by willfully disobeying a lawful order from a superior commissioned officer.  He was sentenced to forfeiture of $250.00 per month for one month and restriction to the barracks for 21 days.  The sentenced was adjudged on 7 November 1977 and approved on 13 December 1977.

12.  The applicant accepted NJP under the provisions of Article 15 of the UCMJ on 20 December 1977, for willfully disobeying a lawful order from his superior noncommissioned officer.  The applicant appealed the matter for consideration by the next superior authority and, on 22 December 1977, his appeal was denied.

13.  The complete facts and circumstances surrounding this discharge are not available for review with this case.  However, his records contain:

   a.  A DD Form 214 which shows he was discharged on 9 January 1978 for misconduct-fraudulent entry, under the provisions of Army Regulation 635-200, chapter 14.  His DD Form 214 also shows in:

* Item 9c (Authority and Reason), Chapter 14, Army Regulation 635-200 and Separation Program Designator "JKG"
* Item 9e (Character of Service) the entry "Under Other Than Honorable Conditions" 
* Item 12c (Net Active Service This Period) the entry "01-03-26"

   b.  An Explanation of Separation from Service, issued by the Commander, U.S. Army Transfer Point, Fort Jackson, SC, advising him of the reason for separation as "Misconduct - Fraudulent Entry" with a reentry code of 3 (not eligible for immediate reenlistment unless a waiver is granted). 

14.  Army Regulation 635-200, in effect at the time, set forth the basic policy for the separation of enlisted personnel.  Paragraph 11-2 provided that a Soldier would be given a bad conduct discharge 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.  Chapter 14 established policy and prescribed procedures for processing fraudulent entry cases and provided for the administrative disposition of enlisted personnel for misconduct by reason of fraudulent entry into the service.  Section II pertained to incident of fraudulent entry.  It stated that fraudulent entry was the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known might have resulted in rejection.  Any incident which met the foregoing could be cause for discharge for fraudulent entry.  

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

15.  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.  His service record shows he received NJP, conviction by an SPCM, and a bad conduct discharge from service in 1975.   Subsequent to this discharge, he fraudulently enlisted in the Regular Army.  Once again, he received NJP, conviction by summary court-martial, and a discharge from service with an under other than honorable conditions discharge. 

2.  The applicant was originally discharged after completion of the appellate process and only after his sentence was affirmed by the appropriate appellate court.  There is no evidence of record and the applicant provides no evidence to support his contention that his military counsel was inadequate.  His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

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.

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)                                         AR20140005424





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ABCMR Record of Proceedings (cont)                                         AR20140005424



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