IN THE CASE OF:  	  

		BOARD DATE:  6 November 2014	  

		DOCKET NUMBER:  AR20140005634 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states:

* he was young 
* he was away from home for the first time
* it is possible that prejudice was involved 
* he has not had any issues since his discharge

3.  The applicant provides no additional evidence in support of his application.

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 
12 August 1970, at the age of 19.  He completed training and was awarded military occupational specialty (MOS) 94B (Cook). 

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on the following occasions for the offenses listed on:

* 10 November 1970, for being absent without leave (AWOL) from 
8 November through 9 November 1970
* 18 November 1970, for willfully disobeying a lawful order
* 3 March 1971, for being AWOL from 21 February through 2 March 1971
* 25 February 1972, for failure to be at his appointed place of duty

4.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) reflects the following additional periods of lost time:

* 3 January through 4 January 1971
* 12 August through 25 October 1971

5.  On 29 December 1971, he was tried before a special court-martial.  He pled not guilty, but he was found guilty of the following charges:

* burglarizing the room of a German National with the intent to commit larceny
* stealing the property of a German National
* committing an assault upon a German National 
* committing an assault upon another Soldier 

6.  Headquarters, 3rd Infantry Division, Special Court-Martial Order Number 31, shows on 11 August 1971, the applicant's sentence was adjudged.  He was sentenced to be discharged from the service with a bad conduct discharge, to be confined at hard labor for 3 months, to forfeit $75.00 pay for 3 months, and to be reduced to the rank/grade of private/E-1.

7.  On 24 January 1973, the applicant was issued an under other than honorable conditions discharge.  He completed 1 year, 1 month, and 22 days of active service.  He had 478 days of lost time due to being AWOL and in military confinement.

8.  He applied to the Army Discharge Review Board for an upgrade of his discharge and on 27 November 1984, the board denied his request.

9.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge.  Chapter 11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and the appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  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.  

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.  There is no evidence of record that the applicant's misconduct and subsequent punishment were the result of prejudice.

2.  Records show the applicant was 20 years of age at the time of his initial offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The evidence shows the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable laws and regulations.  

4.  The applicant was sentenced to a bad conduct discharge.  Evidence shows the discharge appropriately characterizes the misconduct for which he was convicted.

5.  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.

6.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or achievement that would warrant special
recognition.  The applicant's misconduct clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His service was unsatisfactory.  

7.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's other than honorable conditions 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)                                         AR20140005634



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ABCMR Record of Proceedings (cont)                                         AR20140005634



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