BOARD DATE:	  18 June 2015 

		DOCKET NUMBER:  AR20140018482 


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 to a general discharge.

2.  The applicant states:

   a.  He was a young man in the early 1970s.  He had problems completing things he would try to do, such as school and marriage due to problems with alcohol and making poor life choices.  Then he chose to join the Army.   He thought that if he got away from his so called friends he could just maybe get his life under control and his mother would be proud of him.  He completed basic training and it seemed like things were coming together.  He had found something he liked, being a good Soldier and a good person again.

   b.  He was assigned to Fort Knox, KY, and graduated from advanced individual training.  He and his mother were so proud.  He was scheduled to be assigned to Germany in his military occupational specialty (MOS), but things began to go wrong again.  When he called home he was told that his mother was very sick.  He became upset and went home which was wrong at the time.  He wanted to be with his mother.  He stayed at home until his mother told him to go back and request a state-side reassignment.  His request was denied and he was placed in the stockade until he went to court.  His aunt brought his sick mother to see him.  He was very remorseful of his actions because he wanted to prove to his mother that he was a good Soldier.  

   c.  He was sentenced to six months of hard labor at Fort Leavenworth, KS, and he just dropped his head.  The judge looked at his mother and had a change of heart and said, "time dismissed."  It was as if the judge was saying send this man home with his mother.  His mother lived a few months after before dying.  He doesn't know if his life would have been different if he had done what he was ordered to do.  He is glad he was able to serve in the military for a short time.

3.  The applicant provides no additional evidence.

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 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 the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army, in pay grade E-1, on 4 September 1973, for 3 years.  He was awarded MOS 45P (tank turret mechanic).  He was advanced to pay grade E-2 on 29 December 1973.  

3.  He was reported absent without leave (AWOL) from:

* 5 February through 20 March 1974
* 1 through 10 April 1974

4.  On 2 May 1974, he was reported AWOL and dropped from the rolls of his organization on the same day.

5.  In a letter, dated 8 May 1974, the applicant's mother was notified of the applicant's AWOL status.  She was advised that his continued absence could result in his conviction for desertion with loss in pay and allowances, confinement, dismissal, and a dishonorable or bad conduct discharge.  She was urged to contact him and convince him to turn himself into the nearest military or civilian authorities as soon as possible.

6.  On 5 September 1974, he was apprehended by civil authorities and was returned to military control.
7.  On 19 November 1974, he was convicted by a special court-martial of one specification of being AWOL from 2 May through 5 September 1974.  He was sentenced to a reduction to pay grade E-1, a forfeiture of $228.00 per month for 6 months, and a bad conduct discharge.

8.  On 19 November 1974, the convening authority approved the sentence and forwarded the record of trial to the U.S. Army Court of Military Review.

9.  In 4 March 1975, the Staff Judge Advocate recommended, in view of the serious nature of the offenses of which the applicant stood convicted and the fact that the 30-day appeal period had expired, the sentence be ordered executed.

10.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

11.  There is no evidence he applied to the U.S. Court of Military Appeals within the allotted time for a review of his case.

12.  Headquarters, 4th Infantry Division (Mechanized), Fort Carson, CO, Special Court-Martial Order Number 58, dated 7 March 1975, shows that after completion of all required post-trial and appellate reviews, the convening authority affirmed the applicant's sentence and ordered it executed.

13.  He was discharged accordingly on 31 March 1975, under the provisions of Army Regulation 635-200 (Personnel Separations –Enlisted Separations), chapter 11, as a result of a court-martial.  His service was characterized as under other than honorable conditions and a Bad Conduct Discharge Certificate was issued.  He was credited with completing 1 year, 1 month, and 2 days of active service and 177 days of time lost.

14.  There is no evidence he petitioned the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 11 - An enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence had been ordered duly executed. 

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

16.  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 change a court-martial 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 was convicted by a special court-martial and was sentenced to a bad conduct discharge.  His discharge was affirmed and he was discharged accordingly on 31 March 1975.

2.  He provided no evidence to show the charges were not valid and his discharge was unjust.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgrade to a general or fully honorable discharge.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.  

3.  Trial by court-martial was warranted by the offenses changed.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

4.  Any redress by this Board of the finality of a court-marital 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 offenses and absent any mitigating factors, the type of discharge directed and the reasons 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)                                         AR20140018482





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ABCMR Record of Proceedings (cont)                                         AR20140018482



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