IN THE CASE OF:	  

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140007953 


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 (GD).

2.  The applicant states the severity of the punishment did not fit the crime.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty), ending 8 November 1974.

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.  On 18 May 1973, he enlisted in the U.S. Army Reserve (USAR) ) and he entered active duty on 17 August 1973.  He failed to complete his initial entry training at Fort Dix, NJ.
3.  On 21 November 1973, he accepted NJP for:

* being absent from his unit from 10 to 15 November 1973
* willfully disobeying a lawful order form his superior commissioned officer on 15 November 1973

4.  Item 44 (Time Lost Under Section 922, Title 10, U.S. Code and Subsequent to Normal Date ETS (Expiration Term of Service)) of his DA Form 20 (Enlisted Qualification Record) shows he had lost time during the period:

* 10-15 November 1973, absent without leave (AWOL)
* 15-28 November 1973, imprisonment
* 29 November 1973 - 7 February 1974, imprisonment

5.  On 18 January 1974, Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, NJ, issued Special Court-Martial Order Number 5, which shows that, pursuant to his pleas, he was found guilty of violating Article 121 (Larceny) of the Uniform Code of Military Justice (UCMJ):

* stealing $58.00, the property of Soldier 1
* stealing $70.00, the property of Soldier 2

6.  He was sentenced to a BCD, forfeiture of $200.00 per month for four months, confinement at hard labor for three months, and reduction to private/E-1.

7.  On 27 June 1974, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 

8.  Accordingly, on 8 November 1974, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11 (Dishonorable and BCD), and he was issued DD Form 259A (BCD Discharge Certificate). 

9.  On 17 August 1977, the Army Discharge Review Board denied his request to upgrade his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 11 of the version in effect at the time provided that a Soldier would be given a punitive discharge (dishonorable discharge or BCD) pursuant only to an approved sentence of a general or special court-martial.  The appellate review must have been completed and the affirmed sentence ordered duly executed.

	b.  Paragraph 3-7b provides that a GD 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.

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 evidence of record does not support the applicant's request for an upgrade of his BCD to a GD.

2.  The record shows he was convicted of larceny after stealing from fellow Soldiers.  His conviction and sentence by special court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  He was not given his BCD until after his conviction and sentence had been reviewed and affirmed by the U.S. Army Court of Military Review.

3.  His statement that the punishment was too severe has been noted.  However, his record of indiscipline also included a brief AWOL period and disobeying a lawful order.  It can be presumed that these acts of misconduct were factored into his sentencing.

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.  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)                                         AR20140007953





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ABCMR Record of Proceedings (cont)                                         AR20140007953



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