IN THE CASE OF:	  

		BOARD DATE:	  8 OCTOBER 2015

		DOCKET NUMBER:  AR20150003495 


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:

	a.  His military records were destroyed in a fire at the National Personnel Records Center (NPRC) in 1973.  The only documents he has are certificates from infantry training and jump school and a Certification of Military Service.

	b.  He enlisted in the Army in 1954 when he was 18 years old.  He completed basic training at Fort Knox, KY; advanced individual training at Fort Jackson, SC; and airborne training at Fort Campbell, KY.
 
	c.  In 1955, he witnessed a sergeant assault a private in the barracks.  The private asked him to testify for him.  When the sergeant found out he was going to testify, it made the sergeant mad and he made it rough on the applicant with extra details and threats.  He was afraid for his safety and he decided to be absent without leave (AWOL).  A few weeks later he was arrested and sent back to his unit.  He was court-martialed and sentenced to 6 months of confinement.

	d.  Upon his release from confinement, he was sent to Fort Monroe, VA, and then to Fort Eustis, VA.  He wanted to get back into an airborne unit.  He was told he was an Army misfit.  He decided to be AWOL again.  He was arrested and returned to his unit.  He was told if he didn't take a bad conduct discharge he would spend a lot of time in jail.  He agreed and was sentenced to 6 months in jail.

	e.  He got out of the Army in 1957.  He knew he had to turn his life around.  He got a job, got married, and had a son.  He coached his son's little league baseball team.  He enjoys hunting, fishing, and he is an active member in his church.

	f.  He has always felt bad about his bad conduct discharge and tried many times to see if he could do something about it.
  
3.  The applicant provides:

* letter from the NPRC, dated 22 September 2014 
* certificates of training
* Certification of Military Service

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 complete military records are not available to the Board for review. A fire destroyed approximately 18 million service members' records at the NPRC in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  His Certification of Military Service shows he was a member of the Regular Army from 20 September 1954 to 21 January 1957.

4.  His records are void of the specific facts and circumstances surrounding his discharge action.  However, Headquarters, Fort Monroe, Special Orders Number 10, dated 15 January 1957, show he was separated with a bad conduct discharge on 21 January 1957 under the provisions of Army Regulation 635-204 (Personnel Separations – Dishonorable and Bad Conduct Discharge) and assigned separation program number (SPN) 292 (Other Than Desertion (Court-Martial)).

REFERENCES:

1.  Army Regulation 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges.  Paragraph 1b stated an enlisted person would be separated with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.

2.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) sets forth the basic policy for 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.

3.  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:

1.  The applicant's contentions were carefully considered.  However, in the absence of evidence to the contrary, it must be presumed that the applicant's separation processing was administratively correct and in conformance with applicable regulations.  Without the discharge packet to consider, it is presumed that the authority and reason for his discharge were commensurate with his overall record of service.

2.  In view of the foregoing information, there is an insufficient evidentiary basis for granting the applicant's requested relief.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)                                         AR20150003495



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ABCMR Record of Proceedings (cont)                                         AR20150003495



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