IN THE CASE OF:  	  

		BOARD DATE:  16 June 2015	  

		DOCKET NUMBER:  AR20140018895 


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 at the time of his discharge, laws stated this type of discharge would be automatically upgraded. 

3.  The applicant does not provide any 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 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 enlisted in the Regular Army on 8 September 1971 and he held military occupational specialty 94B (Food Service Specialist).  

3.  On 4 February 1972, while still in training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty. 

4.   He served in Okinawa from on or about 7 June to 3 August 1972.  He was reassigned to Fort Carson, CO.

5.  On 25 September 1973, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty and disobeying a lawful order. 

6.  On 16 October 1973, he was convicted by a general court-martial of one specification of wrongfully possessing a hypodermic needle and a syringe, one specification of stealing money from another Soldier, and two specifications of committing an assault against two Soldiers.  The court sentenced him to a bad conduct discharge, confinement at hard labor for 21 months, a forfeiture of $200 pay for 21 months, and a reduction to the lowest enlisted grade. 

7.  On 11 January 1974, the convening authority approved the sentence, and except for the bad conduct discharge, the sentence was ordered executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

8.  On 24 January 1975, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

9.  On 4 March 1975, while at the Personnel Control Facility (PCF), Fort Ord, CA, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  

10.  On 7 March 1975, also while at the PCF, Fort Ord, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  

11.  On 14 April 1975, the Court of Military Appeals denied his petition for a grant of review with respect to any matter of law. 

12.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 84, dated 24 January 1975, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

13.  He was discharged on 11 June 1975.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged as a result of court-martial in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) with an under other than honorable conditions characterization of service and he was issued a Bad Conduct Discharge Certificate.  This form further shows he completed a total of 2 years, 5 months, and 8 days of creditable military service and he had 481 days of lost time. 

14.  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.

15.  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.

16.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a general court-martial was warranted by the gravity of the offenses 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 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.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

4.  The Army does not now have nor did it ever have a policy or a regulation or a law that authorizes an upgrade of a discharge due to the passage of time.  His service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable discharge or a general discharge is not warranted in this case.  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)                                         AR20140018895



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ABCMR Record of Proceedings (cont)                                         AR20140018895



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