IN THE CASE OF:	  

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140011632


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 (BCD).  

2.  The applicant states, in effect, that he believes his record to be in error or unjust because the charge against him was premeditated murder, an "other than honorable" is not an upgrade, and “time served.”

3.  The applicant provides no additional evidence in support of his request.

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 enlisted in the Regular Army on 1 December 1970 for a period of 2 years.  On 8 December 1970, he executed a DD Form 1695 (Oath of Extension of Enlistment), wherein he extended his 2-year enlistment period for an additional 12 months.  He completed training and was awarded military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist).    

3.  On 18 May 1973, at a special court-martial at Gerszewski Barracks, Karlsruhe, Germany, he was convicted of a single specification of violating Article 128 of the Uniform Code of Military Justice (UCMJ); specifically, in conjunction with others, he committed an assault upon a fellow Soldier by striking him in the head and body with a means likely to produce grievous bodily harm, to wit: a butt can stand and a mop handle. 

4.  On 25 July 1973, he received nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for the following offenses on 18 July 1973:

* operating a vehicle in a reckless manner
* willfully disobeying a lawful order from his superior noncommissioned officer to reduce his speed to 60 miles per hour

5.  On 22 February 1974, at a special court-martial at Karlsruhe, Germany, he was convicted of a single specification of violating Article 122 of the UCMJ.  Specifically, he, in conjunction with an unknown person on or about 23 November 1973, did, by means of force, violence and by putting him in fear, steal U.S. currency from a fellow Soldier.  Part of his sentence consisted of a BCD.  

6.  On 29 March 1974, the sentence was approved and the record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

7.  Special Court-Martial Order Number 436, issued by Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS on 11 July 1974 restored the applicant to duty pending the completion of an appellate review.

8.  On 16 January 1975, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  The U.S. Court of Military Appeals denied his petition for review.

9.  Special Court-Martial Order Number 274, Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, dated 19 May 1975, shows that, after completion of all required post-trial and appellate reviews, the BCD was ordered duly executed.

10.  On 10 June 1975, the applicant was discharged in accordance with the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 11.  His DD Form 214 shows he was discharged as a result of court-martial, with an under other than honorable character of service.  His DD Form 214 also shows he was given a Bad Conduct Discharge Certificate.  This form further shows he completed a total of 3 years, 9 months, and 26 days of creditable military service with 230 days of time lost.

11.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 28 August 1978, after careful review of his application, military records, and all other available evidence, the ADRB determined he was properly and equitably discharged and denied his request.

12.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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.

13.  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.  

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was charged with premeditated murder, which led to his discharge. 

2.  The evidence of record shows he was given a BCD pursuant to an approved sentence of a special court-martial for in conjunction with an unknown person, stealing U.S. currency from a fellow Soldier.

3.  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.  He was afforded counsel.  The appellate review was completed and the affirmed sentence ordered duly executed.  

4.  All requirements of law and regulation were met and his rights were fully protected.  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.  

5.  Lastly, he alludes to some error or injustice regarding his service time.   He contends his enlistment was for only 2 years.  His original enlistment was for        2 years; however, on 8 December 1970, he extended his enlistment by a period of 12 months, thereby extending his service obligation.  His DD Form 214 shows lost time, which when added to his credible service exceeds his contractual service obligation.  Since lost time is not credible toward the fulfillment of his normal service obligation, it is understandable that his service time exceeded his normal service obligation.  

6.  In view of the foregoing, there is insufficient basis to grant 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20140011632



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