IN THE CASE OF:	  

		BOARD DATE:	  4 December 2014

		DOCKET NUMBER:  AR20140007173 


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 a general discharge.

2.  He states he has made many mistakes during his military service.  He adds that since he has aged, he is in need of the Department of Veterans Affairs (VA) medical care.  

3.  He does not provide any 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 4 October 1961. 
3.  On 31 July 1962, he was convicted by a special court-martial of two specifications of being absent without leave (AWOL):  7 to 28 May 1962 and
4 to 25 June 1962.  On 7 August 1962, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 2 months and a forfeiture of $50.00 pay for 4 months.  He suspended the confinement at hard labor for 4 months unless vacated.  On 11 September 1962, his confinement for 2 months was vacated.

4.  On 23 October 1962, he was convicted by a general court-martial of disobeying a lawful order from the cell block supervisor and unlawfully striking the cell block supervisor on the body with his fist.  The convening authority approved so much of the sentence as provided for a BCD, forfeiture of all pay and allowances, and confinement at hard labor for 6 months.  The convening authority approved the sentence and the U.S. Army Court of Criminal Appeals affirmed the findings and sentence on 13 December 1962.

5.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under other than honorable conditions on 
3 April 1963 under the provisions of Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharge) with a BCD.  He completed 8 months and 18 days of active duty service with lost time from 7 to 28 May 1962, 4 to 25 June 1962, 26 June to 30 July 1962, and 11 September 1962 to 3 April 1963.

6.  Army Regulation 635-204, in effect at the time of the applicant's separation, provided the authority for separation of enlisted Soldiers with a bad conduct or dishonorable discharge.  Paragraph 1b of that regulation provides that an enlisted Soldier will be discharged with a BCD pursuant to an approved sentence of a general or special court-martial imposing a BCD.  The appellate review must be completed and the sentence affirmed before it can be duly executed.

7.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 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.  






8.  Court-martial convictions stand as adjudged or as 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 contention, in effect, that his discharge should be upgraded in order to receive benefits from VA was considered.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  He must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade.

2.  The evidence of record shows he was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  He was given a BCD pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the sentence was affirmed.  All requirements of law and regulation were met and his rights were fully protected.

4.  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.  Therefore, given his offense and absent any mitigating factors, the type of discharge directed and the reasons 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)                                         AR20140007173



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ABCMR Record of Proceedings (cont)                                         AR20140007173



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