IN THE CASE OF:
BOARD DATE: 24 February 2015
DOCKET NUMBER: AR20140012087
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, upgrade of his discharge.
2. The applicant did not provide any statement.
3. The applicant provides:
* North Carolina Department of Administration forwarding letter, dated
2 July 2014
* Department of Veterans Affairs (VA) letter, dated 20 May 2014
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
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 December 1968. He held military occupational specialty 13A (Cannoneer).
3. His records show that he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on:
* 21 January 1970 for failing to go to his appointed place of duty
* 27 March 1970, for being absent without leave (AWOL) from 26-27 March 1970
4. A special court-martial convicted him on or about 18 December 1970 of being AWOL from 27 March 1970 to 3 November 1970. The court sentenced him to confinement for 3 months and a bad conduct discharge (BCD).
5. The convening authority indicated the sentence was approved and would be duly executed.
6. Headquarters, 82d Airborne Division, Fort Bragg, North Carolina, Special Court-Martial Order Number 57, dated 14 October 1971 shows the Court of Military Review had set aside so much of the convening authority's action that ordered the sentence into execution. Article 71(c), UCMJ, (pertaining to judicial review) having been complied with, the sentence was ordered executed.
7. On 24 January 1972, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Other than Desertion - Court-Martial. He was issued a Bad Conduct Discharge Certificate. He had completed 2 years, 6 months, and 21 days of total active service with 192 days of lost time.
8. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.
a. Chapter 3 provides that a Soldier will 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 be completed and the affirmed sentence ordered duly executed.
b. 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.
c. 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.
9. 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 did not provide any evidence to support his request.
2. His trial by court-martial was warranted by the gravity of the offense charged. The conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.
3. 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 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) AR20110020828
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ABCMR Record of Proceedings (cont) AR20140012087
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