BOARD DATE:	 28 April 2015 

		DOCKET NUMBER:  AR20140015523 


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 he is requesting his discharge be reviewed and changed. He feels the facts of his case were misrepresented and it was an injustice when he received a bad conduct discharge.  He feels he was railroaded into taking the discharge and his actions did not warrant the harsh discharge he received.  He was told he could apply for a correction to his discharge at a later date and he did so many years ago.  However, he was never given a hearing on this matter.  

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 was inducted into the Army of the United States on 13 December 1963 and he held military occupational specialty 76B (Supply Specialist).  

3.  On 8 April 1964, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failing to report to his appointed place of duty.

4.  On 1 November 1965, he pled guilty to and was convicted by a general court-martial of one specification of stealing 116 gallons of paint, 6 gallons of paint thinner, and 62 paint brushes, the property of the United States Government.  He was sentenced to a bad conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.  

5.  On 7 December 1965, only so much of the sentence was approved that provided for a bad conduct discharge, forfeiture of $50 pay per month for 6 months, and confinement for 6 months.  He was subsequently confined at the Presidio of San Francisco, CA.

6.  General Court-Martial Order Number 9, dated 22 March 1966, issued by the Headquarters, Sixth U.S. Army, Presidio of San Francisco, shows the applicant's sentence had been affirmed and the convening authority remitted the unexecuted portion of his sentence and ordered his bad conduct discharge executed.  On 23 March 1966, he was discharged accordingly.

7.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-204 (Personnel Separations - Enlisted Personnel) as a result of court-martial (separation program number 292).  His service was characterized as under other than honorable conditions and he was issued a Bad Conduct Discharge Certificate.  He completed 1 year, 10 months, and 19 days of net active service and had 141 days of lost time due to being in confinement.  

8.  There is no evidence in his record that shows he ever submitted a request to the ABCMR for an upgrade of his discharge.

9.  Army Regulation 635-204, in effect at the time, provided for separation of enlisted personnel with a dishonorable discharge pursuant to an approved sentence of a general court-martial.  This regulation also provided for separation of enlisted personnel with a bad conduct discharge based on an approved sentence of a general court-martial or a special court-martial imposing a bad 

conduct discharge.  This regulation was later changed to Army Regulation
635-200.

10.  Army Regulation 635-200, 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.

11.  Army Regulation 635-200, 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.

12.  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 shows the applicant's trial by a general court-martial was warranted by the gravity of the offense charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  He could have raised the claim that the facts in his case were misrepresented and his sentence was too harsh as an issue to be considered in mitigation during the court-martial and/or appellate process. 

2.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  After a review of his record of service, it is clear he did not meet the criteria for an honorable discharge or any other character of service than the one he received.  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)                                         AR20140015523



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ABCMR Record of Proceedings (cont)                                         AR20140015523



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