BOARD DATE:	25 August 2015  

		DOCKET NUMBER:  AR20150000636 


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) to a general or honorable discharge.

2.  The applicant states, in effect:

* since being discharged over 39 years ago, he has worked hard to do good in his life
* the BCD has made his life difficult; as he is now 59 years old, having an upgraded discharge would make his later years easier 
* he realizes he made a mistake in judgment and does not wish to make excuses, but he was injured in July 1976 and spent 30 or 40 days in the hospital
* he respectfully and sincerely requests the Board's assistance in helping him obtain an upgraded discharge

3.  The applicant provides no additional supporting 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 enlisted in the Regular Army on 5 November 1975.  After completing initial training he was awarded military occupational specialty 63C (Track Vehicle Mechanic).  The highest rank/grade held was specialist four/E-4.

3.  His official military personnel file (OMPF) contains a DA Form 2173 (Statement of Medical Examination and Duty Status), signed by the applicant's unit commander on 16 July 1976.  The form noted a formal line-of-duty investigation was not required, and the unit commander considered the accident to be in the line of duty.  The description of the accident essentially reads:

* on 9 July 1976 at the battalion motor pool, the applicant was attempting to incorrectly install a fire extinguisher in an M60A1 tank (main battle tank, first introduced in 1960, with the A1 modification added in 1963)
* the extinguisher's discharge tube was not installed and the applicant tried to screw the head onto the extinguisher
* the extinguisher discharged, spraying carbon dioxide (CO2) into his face, and causing him to jump back and up; he struck his head on the driver's hatch
* attempting to escape the CO2, he crawled back into the tank's turret; as he raised his head, he struck the tank commander's seat and fell
* in a near panic, he jumped up and again hit his head, this time on the breech of the main gun
* another Soldier entered the turret in an effort to assist the applicant; as this Soldier reached for the applicant, the applicant again hit his head on the breech of the main gun
* the applicant was finally removed and evacuated by ambulance to the dispensary

4.  On 28 November 1977, he was convicted in a general court-martial of three specifications of Article 121 (Larceny) and three specifications of Article 134 (Mail:  taking, opening, secreting, destroying, or stealing), violations of the Uniform Code of Military Justice (UCMJ).  His sentence consisted of a BCD, reduction to private/E-1, confinement at hard labor for 1 year, and total forfeitures (with those portions of the confinement and total forfeitures which exceeded 9 months being suspended until 15 September 1978).  

5.  On 19 December 1977, the general court-martial convening authority approved the sentence.  On 28 July 1978, the U.S. Army Court of Military Review affirmed the findings and sentence.

6.  General Court-Martial Order Number 547, dated 27 September 1978, issued by Headquarters, U.S. Disciplinary Barracks, directed the applicant's BCD be duly executed.  On 4 January 1979, the applicant was discharged accordingly.

7.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-2, with an under other than honorable conditions discharge.  He was issued a BCD Certificate.  Additionally, his DD Form 214 shows he completed 2 years, 6 months, and 20 days of net active creditable service with 220 days of lost time.  He was not authorized or awarded any awards or decorations.

8.  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.

9.  Army Regulation 635-200, in effect at the time, prescribed policy and procedures for enlisted separations.

	a.  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.  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.  A BCD is issued pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.


DISCUSSION AND CONCLUSIONS:

1.  With respect to the upgrade of the applicant's characterization of service:

	a.  The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  He pled guilty to and was found guilty of the specifications charged.  He was given a BCD pursuant to a general court-martial empowered to adjudge such a discharge.  This type of court-martial was warranted given the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

	b.  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.  Clemency is not warranted in this case.  

2.  It is acknowledged that the applicant sustained a head injury, was treated by hospital personnel and subsequently the injury was determined to be in line of duty.  While the applicant states his life has been difficult since his separation and now suggests an upgrade of his characterization of service will assist him in his later years, there is insufficient evidence to support leniency.  The Board does not upgrade discharges solely to allow one access to Federal or State benefits otherwise denied by law.

3.  Based on the foregoing, there is an insufficient evidentiary basis upon which to grant 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)                                         AR20150000636





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150000636



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1