BOARD DATE:	  24 September 2015

		DOCKET NUMBER:  AR20150002248 


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 upgrade of his bad conduct discharge (BCD) to honorable.

2.  The applicant states, in effect:

* while he is not sure there was an injustice, he feels his discharge should instead have been due to unsuitability for military life
* he states he does not want any benefits, he simply wants his wife to receive a flag when he is buried
* while still on active duty, he fell in with a couple of men who wanted to go to Holland (The Netherlands) to see a girl; it was dumb and foolish
* the Army way of life was just not his way; that is no excuse and he is truly sorry for his behavior
* he is no longer the young, rebellious farm labor boy he once was
* as a civilian, he has worked for one company for over 30 years [as a driver]
* he had a safe driving record for more than 2 million miles and he had no chargeable accidents
* he has received a Temple recommendation showing he was suitable for a life different from the military
* although he does not even understand why he did what he did, he feels he should have endured to the end
* he will accept the Board's decision and asks for mercy so that his wife can receive a flag


3.  The applicant provides:

* a photocopy of recognition for 2 million miles of driving without a preventable accident, received from the National Safety Council
* a document from the Church of Jesus Christ of Latter Day Saints titled Temple Recommend, dated December 2013

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 30 June 1961.  After completing initial training he was awarded military occupational specialty 131.00 (Armor Crewman).  The highest rank/grade held was private first class/E-3.

3.  Available records show he departed his unit at Fort Riley, KS in an absent without leave (AWOL) status on 9 October 1961 and returned to military control on 17 November 1961.  As a result he was tried, pled guilty, and was convicted by a special court-martial on 8 December 1961.  His sentence consisted of a forfeiture of $10 per month for 6 months.  

4.  He was reassigned to a unit in Germany and, on 18 November 1962, again departed his unit in an AWOL status.  He proceeded to Amsterdam, The Netherlands, and remained there until 13 February 1963 (a period of 88 days) when he was apprehended and returned to military control.  He was charged with one specification of AWOL, pled guilty, and was convicted by a general court-martial on 25 March 1963.  He was sentenced to a dishonorable discharge, reduction to private (PV1)/E-1, confinement at hard labor for 1 year, and total forfeitures.  

5.  On 24 April 1963, the general court-martial convening authority approved the sentence.  On 29 May 1963, the Board of Review, U.S. Army, affirmed the findings of guilty and approved only so much of the sentence as provided for a BCD, total forfeitures, confinement at hard labor for 6 months, and reduction to PV1/E-1.

6.  On 21 June 1963, while serving his sentence of confinement at hard labor at the U.S. Disciplinary Barracks, Fort Leavenworth, KS, the applicant applied for restoration to duty so that he could earn a discharge under honorable conditions. 

	a.  A Classification Board was convened on 5 July 1963 and recommended not to restore the applicant to duty and not to provide clemency.  

	b.  On 9 July 1963, the Commandant of the Disciplinary Barracks approved the board's recommendation.

7.  General Court-Martial Order Number 468, dated 12 July 1963, issued by Headquarters, U.S. Disciplinary Barracks, directed the applicant's BCD be duly executed.  On 3 August 1963, the applicant was discharged accordingly.

8.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad-Conduct Discharges), paragraph 1b, with an under other than honorable conditions discharge.  He was issued a BCD Certificate.  Additionally, his DD Form 214 shows he completed 1 year, 3 months, and 9 days of net active creditable service with 298 days of lost time.  He was not authorized any awards or decorations.

9.  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.

10.  Army Regulation 635-200 (Personnel Separations – General Provisions for Discharge and Release), in effect at the time, prescribed policy and procedures for enlisted separations.

	a.  An honorable discharge is a separation with honor.  It is conditioned upon proper military behavior, and proficient and industrious performance of duty, giving due regard to the rank or grade held and the capabilities of the individual concerned.  

		(1) Notwithstanding the criteria listed below, when disqualifying entries are outweighed by subsequent honest and faithful service over a greater period of time or the nature of a conviction, in the opinion of the officer effecting discharge, is not too serious, and the remainder of the service has been honorable, an honorable discharge can be granted.  

		(2) To receive an honorable discharge, the individual had to meet the following qualifications:

* conduct ratings of at least "Good"
* efficiency ratings of at least "Fair"
* not convicted by a general court-martial
* not convicted more than once by a special court-martial
   
	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.

11.  Army Regulation 635-204 provided for separation of enlisted personnel with a bad conduct discharge based on an approved sentence of a general court-martial or a special court-martial imposing a bad conduct discharge.  The appellate review must be completed and the affirmed sentence ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records show he was charged with the commission of an offense 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 offense(s) 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.

2.  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.  


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)                                         AR20150002248



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ABCMR Record of Proceedings (cont)                                         AR20150002248



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