IN THE CASE OF:  	  

		BOARD DATE:  9 April 2015	  

		DOCKET NUMBER:  AR20140011951 


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 an honorable discharge (HD).

2.  The applicant states:

* He told medical personnel in the beginning he had "nerve problems"
* He is over 78 years old and he loves his country
* He hopes to have an honorable discharge from the military before he passes on

3.  The applicant provides:

* Army Review Boards Agency letter, dated 25 June 2014
* Congressional Coversheet, dated 20 June 2014
* Chief of Legislative Liaison Coversheet, dated 23 June 2014
* Congressional Fax Coversheet
* Representative in Congress letter, dated 20 June 2014
* Privacy Act Release Form, dated 8 May 2014
* Report of Medical History, dated 8 December 1958 (one page)
* Report of Medical History, dated 4 May 1960 (two pages)
* Davies, Devening & Davies, Attorneys at Law letter, dated 23 May 1988
* Page 10 of an illegible document


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 on 3 December 1958.  He completed training as a supply handler.  

3.  Report of Medical History, dated 4 May 1960, shows that the applicant reported that he had been nervous all of his life.  Report of Medical Examination, dated 4 May 1960, shows the applicant was found qualified for separation without disability.  

4.  On 13 May 1960, the applicant was convicted, pursuant to his pleas, by a general court-martial of being absent without leave (AWOL) from 30 June until 17 September 1959 and for being AWOL from 29 September 1959 until 15 April 1960.  He was sentenced to:

* Forfeiture of all pay and allowances
* Confinement at hard labor for 9 months
* BCD

5.  The convening authority approved only so much of the sentence as provided for a forfeiture of all pay and allowance, confinement at hard labor for 8 months, and a BCD.  The forfeiture applied to pay and allowances due on and after the date of the action and the applicant as ordered to be confined in the post stockade pending completion of appellate review.

6.  The Board of Review, United States Army, held the findings of guilty and the sentence as approved by the convening authority correct in law and fact, and affirmed the findings of guilty and the sentence.

7.  General Court-Martial Order Number 173, issued by Headquarters, Fort George G. Meade, Fort George G. Meade, MD, dated 22 June 1960, noting that the sentence had been finally affirmed, ordered the sentence executed.

8.  On 7 July 1960, the applicant was discharged pursuant to his court-martial sentence under the provisions of Army Regulation 635-204 (Personnel Separations), as a result of a duly reviewed and affirmed general court-martial conviction.  He completed 7 months of total active service and he had approximately 370 days of lost time due to AWOL and confinement.  He received a BCD.

9.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that 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 modify the severity of the punishment imposed.

10.  Army Regulation 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with a dishonorable discharge or BCD.  This regulation states that an enlisted person will receive a BCD pursuant only to an approved sentence of a general court-martial imposing a dishonorable discharge.

11.  Army Regulation 635-200 (Personnel Separation), the regulation currently in effect, sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 3-7a states 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 states 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, pursuant to his pleas, he was convicted by a general court-martial of being AWOL.  He was discharged as a result of a duly reviewed and affirmed general court-martial conviction.  He has not provided any evidence to show the character of service he received was in error or unjust.  Therefore, there is no basis for granting the applicant an honorable discharge.

2.  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)                                         AR20140011951



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ABCMR Record of Proceedings (cont)                                         AR20140011951



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