IN THE CASE OF: 

		BOARD DATE: 23 August 2023

		DOCKET NUMBER: AR20230005165


APPLICANT REQUESTS:  upgrade of his bad conduct discharge to a more favorable 
designation.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record), 6 February 2023.

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 
Code, section 1552(b); however, the Army Board for Correction of Military Records 
(ABCMR) conducted a substantive review of this case and determined it is in the 
interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states, in effect, there was an amnesty hearing scheduled in St. Paul, 
MN in 1975 and he was on the steps walking in but he collapsed from kidney stones 
and missed the hearing. His discharge was going to be changed during the hearing. He 
needs eligibility for Veteran's benefits.

3.  A review of the applicant's service records shows:

	a.  On 25 January 1972, he enlisted in the Regular Army for 2 years at age 21. He 
completed Basic Combat Training, he completed Advanced Individual Training at 
Fort Knox, and he was awarded military occupational specialty 71B (Clerk Typist)

	b.  On 19 May 1972, he was assigned to 115th Adjutant General Detachment 
(Postal), U.S. Army Europe, and he attained the grade/pay grade private first class/E-3.

	c.  Three DA Forms 268 (Report for Suspension of Favorable Personnel Actions), 
8 September 1972, show an investigation was initiated as the result of an alleged postal 
offense.

	d.  The DD Form 458 (Charge Sheet) showing the charge(s) and specification(s) (if 
any), preferred against the applicant and leading to a trial before a special court-martial 
convening authority, are not contained in the applicant's available service record.
	e.  Special Court-Martial Order Number 32, issued by Headquarters (HQ), 
32nd Army Air Defense command, 5 December 1972, shows he was found guilty of 
stealing certain mail matter from 115th Adjutant General Detachment (Postal) 
Composite Team 1, Army Post Office New York, Pirmasens, Germany, between 17 July 
1972 and 8 September 1972, to wit:  approximately one hundred and seventy first class 
letters and one first class parcel which were addressed to , (City, State);  (City, State);  
(City, State); Specialist 4  (Army Unit);  (City, State);  (City, State); and approximately 
one hundred and sixty-five other persons while said letters and parcel were in the U.S. 
Army Postal System before said letters and parcel were received by the persons to 
whom they were addressed. He was sentenced to be discharged with a bad conduct 
discharge, to be confined at hard labor for 5 months, to forfeit $70.00 per month for 
5 months, and to be reduced to the grade/pay grade of private/E-1. The sentence was 
adjudged on 9 November 1972.

	f.  On 25 January 1973, he was confined at U.S. Disciplinary Barracks, 
Fort Leavenworth.

	g.  Special Court-Martial Order Number 49, issued by HQ, U.S. Disciplinary 
Barracks, 14 March 1973, restored him to duty pending completion of appellate review. 
The part of the sentence in SCMO Number 32, issued by HQ, 32d Army Air Defense 
Command on 5 December 1972, was not applied to pay during the period beginning on 
the date of SCMO 49 and terminating on the date of execution of the sentence.

	h.  Special Court-Martial Order Number 65, issued by HQ, U.S. Army Engineer 
Center and Fort Belvoir, 2 August 1973, shows that pursuant to Article 66, only so much 
of the findings of guilty of the charge and its specification as found the applicant at the 
time and place alleged, wrongfully and unlawfully took the mail matter alleged, and only 
so much of the sentence promulgated in SCMO Number 32, 5 December 1972, as 
provided for bad-conduct discharge, confinement at hard labor for 5 months, and 
reduction to the grade of private/E-1, adjusted on 9 November 1972, was affirmed. That 
portion of the sentence extending to confinement was served. Article 71C having been 
complied with, the sentence as modified, would be duly executed. 

	i.  Special Orders Number 180, issued by HQ, U.S. Army Engineer Center and Fort 
Belvoir, 5 September 1973, discharged him under the provisions of Army 
Regulation 635-200, Chapter 11, effective 6 September 1973.

	j.  On 6 September 1973, he was discharged. His DD Form 214 (Armed Forces of 
the United States Report of Transfer or Discharge) shows he was discharged under the 
provisions of Army Regulation 635-200, Chapter 11 with a characterization of service 
under conditions other than honorable. He completed 1 year, 2 months, and 2 days of 
net active service with 125 days of time lost from 9 November 1972 to 13 March 1972 
and 37 days of excess leave from 14 March 1973 to 19 April 1972. He was awarded or 
authorized the National Defense Service Medal and Marksman Marksmanship 
Qualification Badge with Rifle Bar.

4.  There is no evidence indicating he applied to the Army Discharge Review Board for 
an upgrade of his discharge within that board's 15-year statute of limitations.

5.  In reaching its determination, the Board can consider the applicant’s petition and his 
service record in accordance with the published equity, injustice, or clemency 
determination guidance.

BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation, and published Department of Defense guidance for liberal and clemency 
determinations requests for upgrade of his characterization of service.  Upon review of 
the applicant’s petition and available military records, the Board noted, the applicant 
provided insufficient evidence of post-service honorable conduct that might have 
mitigated the discharge characterization.  The Board found insufficient evidence of in-
service mitigating factors for the misconduct to weigh a clemency determination.  
ABCMR 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.

2.  The Board determined the applicant’s service record exhibits numerous instances of 
misconduct during his enlistment period for 1 year, 2 months, and 2 days of net active 
service with 125 days of time lost. Furthermore, the Board determined the applicant has 
not demonstrated by a preponderance of evidence an error or injustice warranting the 
requested relief, specifically an upgrade of the bad conduct discharge to a more 
favorable characterization of service.  Therefore, the Board denied relief.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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.

	 
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.


REFERENCES:

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 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.

2.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army acting through the ABCMR. The ABCMR begins its consideration of each case 
with the presumption of administrative regularity. The applicant has the burden of 
proving an error or injustice by a preponderance of the evidence.

3.  By law (Title 10, U.S. Code §1552), court-martial convictions stand as adjudged or 
modified by appeal through the judicial process. This 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. The ABCMR does not have authority to set aside a 
conviction by a court-martial. 

4.  Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), Change 42 
(14 December 1973), in effect at the time, provided the authority for the separation of 
enlisted personnel upon expiration of term of service, prior to ETS, and the criteria 
governing issuance of honorable, general, and undesirable certificates.

	a.  Chapter 1-9. Character of Service.

		(1)  Honorable Discharge. An honorable discharge is a separation with honor. 
Issuance of an honorable discharge will be conditioned upon proper military behavior 
and proficient performance of duty during the member's current enlistment of current 
period of service with due consideration for the member's age, length of service, grade, 
and general aptitude. Where a member has served faithfully and performed to the best 
of his ability and has been cooperative and conscientious in doing his assigned tasks, 
he may be furnished an honorable discharge. 

		(2)  General Discharge. A general discharge is a separation from the Army under 
honorable conditions of an individual whose military record la not sufficiently meritorious 
to warrant an honorable discharge. A general discharge may be issued if an individual 
has been convicted by more than one special court-martial in the current enlistment 
period or obligated service or any extension thereof. The decision is discretionary; if 
there is evidence that the individual's military behavior has been proper over a 
reasonable period of time subsequent to the conviction(s), he may be considered for an 
honorable discharge. 

		(3)  Undesirable Discharge. An undesirable discharge is an administrative 
separation from the Service under conditions other than honorable. It may be issued for 
unfitness, misconduct, or for security reasons.

	b.  Chapter 11 provided that an enlisted person will be given a bad conduct 
discharge pursuant only to an approved sentence of a general or special court­martial, 
after completion of appellate review and after such affirmed sentence has been ordered 
duly executed.

5.  Army Regulation 635-5-1 (Separation Program Numbers) in effect at the time 
(20 August 1973), listed the specific authorities, regulatory, statutory, or other directives 
and reasons for separation from active duty, active duty for training, or full-time training 
duty. The SPN 292 corresponded to the authority Army Regulation 635-200, chapter 11, 
and the narrative reason "Other than desertion (court-martial)."

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230005165


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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