IN THE CASE OF:  	  

		BOARD DATE:  31 March 2015	  

		DOCKET NUMBER:  AR20140014627 


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 discharge under conditions other than honorable to a general discharge (GD) or honorable discharge (HD).  

2.  He states, in effect, all the information that is needed to grant his request is in his military service record.  

3.  The applicant provides no documentary evidence in support of his application.  

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 15 January 1969, the applicant enlisted in the Regular Army (RA).  He completed initial entry training and was awarded military occupational specialty (MOS) 36C (Wire Systems Installer).  

3.  He was honorably released from the RA on 25 August 1970 and transferred to the U.S. Army Reserve (USAR).   

4.  On 21 October 1970, he again enlisted in the RA in MOS 36C.

5.  On 7 September 1971, the applicant was convicted at a special court-martial (SPCM) of being disrespectful toward a commissioned officer, failure to obey a lawful order to report back to duty, failure to obey a lawful order from his commanding officer, larceny by stealing clothing from another Soldier, two specifications of assault towards a commissioned officer and a non-commissioned officer, and wrongfully communicating a threat to a non-commissioned officer.  He was sentenced to be confined at hard labor for
4 months, a forfeiture of $127.00 pay for 6 months, and the issuance of a bad-conduct discharge (BCD).

6.  On 20 September 1972, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  

7.  On 26 December 1972, Headquarters, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, MO, issued Special Court-Martial Order Number 64.  The order shows that his sentence, having been affirmed, was ordered executed.  

8.  On 12 January 1973, the applicant was discharge under conditions other than honorable under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11.  He completed 3 years, 8 months, and 9 days of total active service with 110 days of lost time.  

9.  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 an enlisted person would be given a BCD pursuant only to an approved sentence of a general or SPCM, after completion of appellate review, and after such affirmed sentence has been ordered duly executed.  The service of Soldiers sentenced to a BCD was to be characterized as under conditions other than honorable.  

	b.  Paragraph 3-7a provides that an HD is a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  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.

10.  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 discharge under conditions other than honorable to a GD or HD.  

2.  His conviction and sentence by an SPCM 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 the sentence had been reviewed and affirmed by the U.S. Army Court of Military Review.  

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 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)                                         AR20140010711



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ABCMR Record of Proceedings (cont)                                         AR20140014627



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