IN THE CASE OF: BOARD DATE: 24 May 2016 DOCKET NUMBER: AR20150011332 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 24 May 2016 DOCKET NUMBER: AR20150011332 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 24 May 2016 DOCKET NUMBER: AR20150011332 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 dishonorable discharge. 2. The applicant states he would like his discharge upgraded so he can purchase a concealed weapon permit. He lives out in the country and he is 68 years of age. He wants to carry a pistol legally. 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 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 was inducted into the Army of the United States on 23 November 1965 and he held military occupational specialty 11C (Infantry Indirect Fire Crewmember). 3. On 29 July 1966, he departed his Fort Lewis, WA, unit in an absent without leave (AWOL) status. He returned to military control on 5 August 1966. 4. On 9 August 1966, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 29 July to 5 August 1966. 5. On 10 October 1966, he again departed his unit in an AWOL status. His unit dropped him from the Army rolls as a deserter. Authorities apprehended him and returned him to military control on 30 August 1968. 6. On 20 November 1968, consistent with his plea, a general court-martial convicted him of one specification of being AWOL with intent to remain away permanently and in desertion from 10 October 1966 to 30 August 1968. The court sentenced him to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 1 year. 7. On 6 February 1969, the convening authority approved the sentence and, except for that part of the sentence extending to the dishonorable discharge, ordered the sentence executed. The convening authority ordered the record of trial forwarded to The Judge Advocate General of the Army for appellate review. 8. On 13 May 1969, the U.S. Army Board of Review affirmed the approved findings of guilty and the sentence. 9. General Court-Martial Order Number 624, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS on 23 June 1969, shows that after completion of all required post-trial and appellate reviews the convening authority ordered the applicant's dishonorable discharge executed. 10. The Army discharged the applicant on 21 July 1969. His DD Form 214 shows he was discharged in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to court-martial with a dishonorable discharge. This document further shows he completed a total of 10 months and 16 days (including excess leave) of total active service. He had a substantial period of lost time before and after the expiration of his term of service. REFRENCES: 1. Army Regulation 635-200 governs the separation of enlisted personnel. a. Paragraph 3-7a states 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 states 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 3-7c states a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial in certain situations. d. Paragraph 3-10 states 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. e. Paragraph 3-11 states a Soldier will be given a bad conduct discharge 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. 2. 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 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. 2. The law prohibits any redress by this Board of the finality of a court-martial conviction. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 3. The Army does not have not now have nor did it ever have a policy wherein a characterization of service is upgraded due to passage of time or age or for the sake of eligibility for other benefits. The Board considers each case on its own merits. 4. Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also rendered his service unsatisfactory. His service did not rise to the level required for an honorable or a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011332 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011332 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2