IN THE CASE OF:  	  

		BOARD DATE:  6 January 2015	  

		DOCKET NUMBER:  AR20140007871 


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, an upgrade of his bad conduct discharge.

2.  The applicant states:

* he would like to have his dishonorable discharge overturned
* he would like to be buried in a National cemetery – it would be an honor for him
* he only has months to live due to lung cancer

3.  The applicant provides:

* Certification of Military Service
* power of attorney for healthcare decisions
* DD Form 214 (Report of Separation from the Armed Forces of the United States)

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 30 June 1948 for 3 years.

3.  On 14 May 1949, he was convicted by a summary court-martial of failing to obey the order of a noncommissioned officer.  He was sentenced to hard labor without confinement for 30 days and forfeiture of $60.00 in pay.

4.  On 19 January 1950, he was convicted by a summary court-martial of breaking restriction.  He was sentenced to hard labor without confinement for 30 days, reduction to E-1, and forfeiture of $50.00 in pay.

5.  On 28 August 1950, the applicant was convicted by a special court-martial of breaking restriction and breaking arrest.  He was sentenced to confinement at hard labor for 4 months and forfeiture of $55.00 in pay per month for 3 months.  The convening authority approved the sentence on 13 September 1950.

6.  On 16 June 1951, he was convicted by a summary court-martial of being absent without leave (AWOL) for 17 days.  He was sentenced to confinement at hard labor for 30 days and forfeiture of $40.00 in pay.

7.  On 8 August 1951, he was convicted by a special court-martial of being AWOL from 16 July 1951 to 20 July 1951.  He was sentenced to a bad conduct discharge, forfeiture of $55.00 in pay for 3 months, and confinement at hard labor for 3 months.  The convening authority approved the sentence on 1 September 1951.

8.  On 14 November 1951, the Office of the Judge Advocate General affirmed the findings of guilty and the sentence.

9.  On 19 February 1952, the convening authority ordered the bad conduct discharge to be executed.

10.  He was discharged on 4 March 1952 under the provisions of Army Regulation 615-364 (Enlisted Men – Discharge – Dishonorable and Bad Conduct) as a result of court-martial.  He completed 2 years, 7 months, and 9 days of creditable active service and accrued 404 days of lost time.

11.  Army Regulation 615-364, in effect at the time, set forth the basic authority for the separation of enlisted personnel for as a result of a dishonorable and/or bad conduct discharge.  An enlisted person would be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, 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.

13.  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 states he received a dishonorable discharge, but the evidence shows he received a bad conduct discharge.

2.  A trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the type of discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  His record of service included three summary court-martial convictions, two special court-martial convictions, and 404 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an upgraded discharge.

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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

5.  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 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)                                         AR20140007871



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007871



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1