BOARD DATE: 14 January 2016 DOCKET NUMBER: AR20150004944 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 in effect upgrade of his undesirable discharge to an honorable or general under honorable conditions discharge. 2. The applicant states he was in the wrong place at the wrong time and got caught up in the events. He went to trial, paid his dues, and served his time. He returned to active duty and finished his military service with no other problems. He has not been in any legal trouble since his discharge. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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 13 August 1971. 3. He transferred to U.S. Army Pacific, Okinawa, on 8 January 1972 and he was assigned to the 412th Transportation Company effective 17 January 1972. 4. He received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions: * 14 February 1972 – for unlawfully striking another Soldier with his hands on or about 10 February 1972 * 21 March 1972 – for failing to go at the time prescribed to the appointed place of duty on or about 20 March 1972 * 17 April 1972 – for failing to obey a lawful general order by being present in a prohibited area on or about 20 August 1971 5. On 8 January 1973, he underwent a psychiatric evaluation pursuant to administrative action. Direct examination and review of his past history revealed a chronic, moderate, immature personality as manifested by short-sighted hedonism, adolescent attitudes, tendency toward grandiosity and self-indulgent rationalization, poor ability to relate to authority figures, and poor control of aggressive impulses. His thought process was lucid and intact, but he lacked motivation for constructive insight. 6. His DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record) – Record of Court-Martial Conviction) shows U.S. Army Base Command Okinawa General Court-Martial Order Number 4, dated 26 January 1973, sentenced him to a bad conduct discharge, confinement at hard labor for 1 year, and forfeiture of all pay and allowances for committing acts of extortion and assault and battery on or about 20 September 1972. 7. Headquarters, U.S. Disciplinary Barracks, General Court-Martial Order Number 582, dated 2 July 1973, restored the applicant to active duty pending completion of the appellate review. The portion of the sentence adjudging forfeitures would not apply to pay and allowances during the period commencing on 2 July 1973 until the execution of the sentence. 8. On 18 January 1974, notification was sent to the U.S. Army Training Center Infantry and Fort Dix informing the Staff Judge Advocate that the U.S. Court of Military Appeals had denied the applicant's petition for a grant of review. 9. Headquarters, U.S. Army Training Center and Fort Dix, General Court Martial Order Number 11, dated 23 January 1974, stated the findings and sentence, as approved by the convening authority, had been affirmed and directed execution of the unexecuted portion of the sentence to a bad conduct discharge and remitted that the portion of the sentence pertaining to forfeiture of pay. 10. Headquarters, U.S. Army Training Center and Fort Dix, Special Orders Number 106, dated 16 April 1974, directed the applicant's discharge effective 24 April 1974 and the issuance of a DD Form 259A (Bad Conduct Discharge Certificate). 11. The applicant was discharged on 29 April 1974 pursuant to a duly-reviewed and affirmed court-martial conviction. He completed 1 year, 8 months, and 14 days of active service and accrued 368 days of lost time due to AWOL and confinement. The DD Form 214 (Report of Separation from Active Duty) issued at the time of his discharge indicates he was issued a DD Form 258A (Undesirable Discharge Certificate) instead of a DD Form 259A. Also it indicates he was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations) paragraph 10-1 (Discharge for the Good of the Service). 12. Item 44 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date Expiration Term of Service) of his DA Form 20 shows he was charged with 367 days of lost time for confinement and 1 day of lost time for being absent without leave (AWOL). 13. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service. b. Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed. c. 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. d. 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. 15. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 contentions regarding his discharge were noted. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses and his overall undistinguished record of service. 2. His record of service includes acceptance of nonjudicial punishment on three occasions and a general court-martial conviction for committing acts of extortion and assault and battery. The conviction and discharge were effected in accordance with applicable law and regulations. 3. 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. 4. The applicant’s DD Form 214 issued at the time of his discharge indicates he was issued an Undesirable Discharge Certificate instead of a Bad Conduct Discharge Certificate. In addition, the reason and authority for his separation were cited as Chapter 10 of Army Regulation 632-200 instead of Chapter 11. It has been a long-standing policy of the Board that an applicant will not be made worse off than when he or she applied to the Board. Therefore, the Board will not direct correction of the administrative error or issuance of a Bad Conduct Discharge Certificate in lieu of the Undesirable Discharge Certificate he was issued or direct correction of his DD Form 214 to show the correct reason and authority for his separation. 5. The applicant's entire record of service was considered. Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case. As a result, there is no evidentiary basis to support the applicant’s request to upgrade his 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 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) AR20150004944 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004944 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1