BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20170002347 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 BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20170002347 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. BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20170002347 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 he appreciates the Board's cooperation in upgrading his discharge. He is under the "title of principality of the province" and his service records should contain all related information. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * letter from the National Personnel Records Center * Department of Veterans Affairs Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits) 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 27 January 1965 for a 3-year term. He was assigned to Fort Knox, KY, for training. 3. On 17 May 1965, he accepted nonjudicuial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL) from 12 to 14 May 1965. 4. On 20 August 1965, he was convicted by a summary court-martial of two specifications of being AWOL from 9 June to 26 July 1965 and from 30 July to 1 August 1965. The court sentenced him to performance of hard labor for 15 days, forfeiture of $25.00 pay, and reduction to pay grade E-1. The convening authority approved the sentence on 24 August 1965. 5. On 22 September 1965, he was convicted by a summary court-martial of two specifications of failing to repair (report to a particular place). The court sentenced him to performance of hard labor for 10 days and forfeiture of $10.00 pay. The convening authority approved the sentence on 27 September 1965. 6. On 7 December 1965, he was convicted by a summary court-martial of three specifications of being AWOL from 15 to 18 October 1965, from 5 to 8 November 1965, and from 20 to 22 November 1965. The court sentenced him to confinement at hard labor for 20 days, forfeiture of $60.00 pay, and reduction to pay grade E-1. The convening authority approved the sentence on 9 December 1965. 7. On 10 May 1966, he was convicted by a general court-martial of one specification of being AWOL from 23 January 1966 to 7 March 1966. The court sentenced him to a bad conduct discharge, confinement at hard labor for 9 months, and forfeiture of $70.00 pay for 9 months. 8. On 19 June 1965, the convening authority approved the sentence and, except for the bad conduct discharge, ordered it executed. The record of trial was forwarded to the Judge Advocate General of the Army for review by the appellate authority. 9. On 21 October 1966, the U.S. Army Board of Review determined the findings of guilty and only so much of the sentence as provided for the bad conduct discharge, forfeiture of $70.00 pay for 7 months, and confinement at hard labor for 7 months should be approved. The U.S. Army Board of Review affirmed the findings of guilty and the modified sentence. 10. General Court-Martial Order Number 38 issued by Headquarters, Fort Riley, KS, on 2 June 1967 shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 11. The applicant was discharged on 23 June 1967. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-204 (Personnel Separations – Dishonorable and Bad – Conduct Discharges). He completed 11 months and 23 days of active service with 514 days of lost time. He was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar. His service was characterized as under other than honorable conditions and he was issued a Bad Conduct Discharge Certificate. 12. He provided a Department of Veterans Affairs application for disability compensation based on schizophrenia. REFERENCES: 1. Army Regulation 635-204, in effect at the time, provided for separation of enlisted personnel with a dishonorable discharge pursuant to an approved sentence of a general court-martial. This regulation also 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. 2. Army Regulation 635-200, in effect at the time, provided the basic authority for separation of enlisted Soldiers. a. Paragraph 1-9d stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. Paragraph 1-9e stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. DISCUSSION: 1. The evidence of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offense charged. His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which he was convicted. 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 appears appropriate. As a result, clemency does not appear to be warranted in this case. 3. Based on his record of serious misconduct, the court determined the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. The court also determined his service did not meet the criteria for an honorable or a general discharge. 4. The applicant has not provided any documentary evidence to show his conviction and sentence were in error or unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170002347 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170002347 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2