IN THE CASE OF:	  

		BOARD DATE:	  4 August 2015

		DOCKET NUMBER:  AR20150000106 


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 under honorable conditions (general) discharge. 

2.  The applicant states his military records show he was absent without leave for one day.  It was not his intention for this to happen.  He tried to get back on time. He does not deserve this type of discharge.  It has been 49 years since he was discharged.  

3.  The applicant provides his reissued DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 was inducted into the Army of the United States on 16 August 1962.  He was honorably discharged from active duty on 25 October 1962 for the purpose of enlistment in the Regular Army.  He was issued a DD Form 214 that credited him with 2 months and 10 days of active service.  

3.  He enlisted in the Regular Army on 26 October 1962 and he held military occupational specialty 111.07 (Light Weapons Infantryman).  He was assigned to Fort Bragg, NC.  

4.  On 18 June 1963, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order not to have in his possession a switchblade knife. 

5.  On 10 September 1964, he again 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.

6.  On 17 December 1963, he was convicted by a general court-martial of stealing 780 pounds of sugar, property of the United States.  The court sentenced him to a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 5 years, and a reduction to the rank/grade of private/E-1. 

7.  On 15 January 1964, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 1 year, and a reduction to the rank/grade of private/E-1, and except for that part of the sentence extending to the dishonorable discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

8.  On 3 June 1964, the Office of The Judge Advocate General of the Army, U.S. Army Board of Review affirmed the approved findings of guilty and the sentence.

9.  On 16 September 1964, the United States Court of Military Appeals denied his petition for a grant of review. 

10.  Headquarters, 101st Airborne Division, Fort Campbell, KY, General Court-Martial Order Number 95, dated 12 October 1964, shows that after completion of all required post-trial and appellate reviews the convening authority ordered the applicant's modified discharge sentence executed (confinement at hard labor changed to 9 months had been served and the dishonorable discharge was changed to undesirable discharge). 

11.  The applicant was discharged from the Army on 15 October 1964.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged in accordance with Army Regulation      635-204 (Personnel Separations) as a result of court-martial with an under other than honorable conditions discharge.  He was issued an Undesirable Discharge Certificate.  His DD Form 214 further shows he completed a total of 1 year, 5 months, and 7 days of creditable active military service.  He had 263 days of lost time. 

12.  On 31 July 1980, the Army Discharge Review Board reviewed his discharge and changed it to an under honorable conditions (general) discharge.  As a result, his DD Form 214 was voided and he was issued a new DD Form 214 upgrading his discharge effective 16 June 1980 to general, under honorable conditions. 

13.  Army Regulation 635-200 governs the separation of enlisted personnel.

	a.  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.  

	b.  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.

	c.  Paragraph 3-10 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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 was convicted by a general court-martial which was warranted by the gravity of the offense charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  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.

2.  He was given an undesirable 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 and his rights were fully protected.

3.  The ADRB reviewed his discharge and upgraded it to a general, under honorable conditions.  However, based on his overall record of indiscipline, which included two instances of NJP, a court-martial conviction, and lost time, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he should not receive an honorable discharge. 

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)                                         AR20150000106





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ABCMR Record of Proceedings (cont)                                         AR20150000106



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