BOARD DATE:	  2 April 2015

		DOCKET NUMBER:  AR20140013106 


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. 

2.  The applicant states in the past he was travelling with his job and he did not have the chance or time to upgrade his discharge.  He wants his records to reflect a better characterization of service.  

3.  The applicant provides 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's records show he was inducted into the Army of the United States on 18 March 1964.  He held military occupational specialty 61B (Heavy Vehicle Driver). 

3.  He was assigned to the 4th Engineer Battalion, Fort Lewis, WA.  The highest rank/grade he attained during his military service was private/E-2.

4.  On 17 February 1965, he was convicted by a special court-martial of two specifications of being absent without leave (AWOL) from 17 November 1964 to 1 December 1964 and from 6 January 1965 to 5 February 1965.  The court sentenced him to a reduction to E-1, confinement at hard labor for 6 months, and a forfeiture of $50.00 per month for 6 months.  The convening authority approved his sentence on 20 February 1965. 

5.  On 23 November 1965, he was convicted by a general court-martial of one specification of AWOL from 24 April 1965 to 23 September 1965.  The court sentenced him to a bad conduct discharge, a forfeiture of all pay and allowances, and confinement at hard labor for 6 months.  

6.  On 4 January 1966, the convening authority approved the sentence as provided and except for the bad conduct discharge, he ordered the sentence approved.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

7.  On 4 April 1966, the U.S. Army Court of Military Review affirmed the approved findings of guilty and a modified sentence.  

8.  On 4 May 1966, his request for parole was disapproved but clemency was approved and the unexecuted portion of his sentence was remitted. 

9.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 263, dated 6 May 1966, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

10.  He was discharged on 6 May 1966.  His DD Form 214 shows he was discharged as a result of court-martial in accordance with Army Regulation    635-204 (Personnel Separations – Dishonorable and Bad Conduct Discharge) with an under other than honorable conditions character of service.  This form further shows he completed a total of 10 months and 3 days of creditable military service and nearly 418 days of lost time.


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.

12.  Army Regulation 635-200 provides for the 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a general court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed modified sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

3.  In addition to the general court-martial conviction, his record of service included a previous conviction by a special court-martial for a similar offense.  As a result, his service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to the 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 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)                                         AR20140013106





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ABCMR Record of Proceedings (cont)                                         AR20140013106



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