BOARD DATE: 28 August 2012 DOCKET NUMBER: AR20120003790 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 discharge. 2. The applicant states he did nothing wrong. He had problems at home and asked to be stationed near his family. He was informed that he could either stay at Fort Riley, Kansas or he could go home and be discharged. He chose to go home and be discharged. 3. The applicant provides a DD Form 293 (Application for Review of Discharge) which sets out essentially the same argument. 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 30 June 1972. He completed training in military occupational specialty (MOS) 11D as an Armor Reconnaissance Specialist and was stationed at Fort Riley. He progressed normally and was advanced to private first class/E-3 on 12 July 1973. 3. On 25 September 1973, a summary court-martial convicted him of willful disobedience of a noncommissioned officer and absence from his appointed place of duty. He was reduced to private/E-1. 4. On 6 March 1974, a special court-martial convicted the applicant of willful disobedience of his platoon sergeant, willful disobedience of a captain, disrespect to a second lieutenant, and failure to obey a lawful order. He was sentenced to a bad conduct discharge (BCD). The findings and sentence were approved and the applicant went home on appellate leave. 5. The findings and sentence were affirmed upon review. On 30 January 1975, Article 71 (c), Uniform Code of Military justice having been complied with, the BCD was ordered executed. 6. On 11 February 1975, the applicant was discharged accordingly. He had completed 2 years, 6 months, and 1 day of creditable service and had 41 days lost time. 7. On 15 February 1979, the Army Discharge Review Board denied the applicant's request to upgrade his discharge. 8. Army Regulation 635-200 sets forth the basic policy 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. 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. 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. DISCUSSION AND CONCLUSIONS: 1. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge was lenient compared to the misconduct for which the applicant pled guilty. Therefore, he is not entitled to an honorable or a general discharge. 2. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate. As a result, 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) AR20120003790 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120003790 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1