IN THE CASE OF: BOARD DATE: 18 April 2012 DOCKET NUMBER: AR20110018031 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 his bad conduct discharge (BCD) be upgraded to an honorable discharge. 2. He states he served his country without running from war. 3. He provides: * DA Form 2-1 (Personnel Qualification Record – Part II) * DA Form 2-2 (Insert Sheet to DA Form 2-1 – Record of Court-Martial Conviction) * DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) * General court-martial orders * DD Form 214 (Report of Separation from Active Duty) 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 4 June 1973 for a period of three years. He completed basic combat and advanced individual training and was awarded military occupational specialty 51B (Carpenter). He served in Korea from 21 October 1973 through 20 October 1974. 3. While serving in Korea, he accepted nonjudicial punishment under Article 15, UCMJ for causing a breach of the peace by wrongfully swinging his fists at a Military Policeman and causing a crowd to gather. 4. His service record shows he was in an absent without leave (AWOL) status from 16 to 22 June 1975 and from 22 to 23 September 1975 (this period of lost time not recorded on his DD Form 214). 5. On 30 September 1975, he was found guilty contrary to his plea by a general court-martial of stealing, by means of force, from a private/E-2, against his will, a Timex wrist watch of a value of about $28.00 and a cigarette lighter of a value of about $4.00. He was sentenced to forfeit all pay and allowances, confinement at hard labor for 9 months, and to be discharged from the service with a BCD. 6. On 24 December 1975, the convening authority approved the sentence to a BCD, confinement at hard labor for 9 months, forfeiture of all pay and allowances, and reduction to the grade private/E-1. The forfeitures were applied to all pay and allowances becoming due on and after the date of this action. The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. 7. General Court-Martial Order Number 74, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, dated 22 January 1976, stated the portion of the applicant’s sentence adjudging total forfeitures was modified to provide that forfeiture in excess of $160.00 pay per month for each month was suspended until such time as the sentence was ordered into execution. The order stated, at which time, unless the suspension was sooner vacated, the suspended portion would be remitted without further action. 8. General Court-Martial Order Number 407, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, dated 6 May 1976, stated the applicant had served the period of confinement adjudged on 30 September 1975 and he was restored to duty pending completion of appellate review. That portion of the sentence adjudging forfeitures did not apply to pay and allowances becoming due the applicant, during the period commencing on the date of this order and terminating on the date of the order directing execution of the sentence. 9. On an unknown date, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 10. General Court-Martial Order Number 767, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, dated 7 September 1976 shows the BCD was ordered to be executed. 11. He was discharged on 21 October 1976 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 11-2, as a result of court-martial, other. He completed a total of 2 years, 9 months, and 2 days of creditable active service with 226 days of lost time. 12. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Paragraph 3-11 of this regulation states that a Soldier will be given a BCD 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. 13. Army Regulation 635-200, 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. 14. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 15. 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. The applicant’s service record shows he was in an AWOL status on two separate occasions from 16 to 22 June 1975 and from 22 to 23 September 1975. Additionally, he was found guilty by a general court-martial of stealing by means of force from another soldier. 2. The applicant's trial by court-martial was warranted by the gravity of the offenses charged. The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted. 3. His service record shows he received one Article 15 and was convicted by a general court-martial. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, his record of service is insufficiently meritorious to warrant an honorable or general discharge. 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) AR20110018031 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110018031 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1