IN THE CASE OF: BOARD DATE: 16 January 2014 DOCKET NUMBER: AR20130008857 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: a. He was absent without leave (AWOL). During his court-martial he was called a stupid individual along with other derogatory words like "squaw" by a second lieutenant, so he hit the guy. He was never court-martialed for this. His lawyer said he worked for the Army and there wasn’t much he could do. He is not a bad conduct person. b. He is a Native American with six uncles who served during World War II. An older brother was in the U.S. Air Force and a younger brother was in the U.S. Marine Corps. He has one son who served in Afghanistan and a daughter serving there now. He should not have been called a deserter. A person shouldn't be scared of war, but better worry about heaven and hell. 3. The applicant provides no additional evidence. 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 14 March 1968, with a waiver of civil offenses. He completed training and was awarded military occupational specialty 11B (light weapons infantryman). 3. On 29 October 1968, he was convicted by a special court-martial of one specification of being AWOL from 9 August through 8 October 1968. He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay (suspended). 4. On 12 November 1968, the convening authority approved the sentence. 5. On 7 May 1969, he was convicted by a special court-martial of one specification of being AWOL from 23 November 1968 through 21 April 1969. He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay for 6 months. 6. On 22 May 1969, the convening authority approved the sentence. 7. On 25 July 1969, the convening authority suspended the approved sentence to confinement until 6 November 1969. 8. On 8 December 1969, the convening authority ordered the unexecuted portion of the suspended sentence to confinement duly executed based on the applicant being AWOL from 29 July through 30 November 1969. 9. On 24 February 1970, he was convicted by a special court-martial of one specification of being AWOL from 29 July through 30 November 1969. He was sentenced to a bad conduct discharge, a forfeiture of pay, and confinement. 10. On 14 May 1970, 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 Adjutant General. 11. On 14 May 1970, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 12. Accordingly, he was discharged in pay grade E-1 on 22 May 1970, under the provisions of Army Regulation 635-204 (Personnel Separations Dishonorable and Bad-Conduct Discharge), with a character of service of under conditions other than honorable with the issuance of a Bad Conduct Discharge Certificate. He was credited with completing 9 months and 6 days of net active service with 348 days of time lost. 13. There is no evidence he applied to the U.S. Court of Military Appeals for a review of his case. 14. There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 15. Army Regulation 635-204, in effect at the time, set forth the basic authority for the separation of enlisted personnel as a result of a court-martial. Paragraph 1(a) of the regulation stated an enlisted person would receive a bad conduct discharge pursuant only to an approved sentence of a court-martial imposing a bad conduct discharge. The appellate review must be completed and the affirmed sentence ordered duly executed. 16. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, stated in: a. Paragraph 3-7a - 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 meets the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization will be clearly inappropriate. b. Paragraph 3-7b – a general discharge was 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. 17. 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 change a court-martial 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 evidence of record shows the applicant was convicted by three special courts-martial for lengthy periods of AWOL. On 22 May 1970, he was discharged pursuant to the sentence of his special court-martial and he was issued a bad conduct discharge after the sentence was affirmed. 2. He provided no evidence to show his discharge is unjust. There is no error or injustice apparent in his record. There is also no evidence his special courts-martial were unjust or inequitable. He has not provided sufficient evidence or argument to show his discharge should be upgraded to a general or a fully honorable discharge. He was properly discharged in accordance with pertinent regulations with due process and no violation of his rights. 3. Trial by special court-martial was warranted by the severity of the offense charged. His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted. 4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge. 5. Additionally, 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 his lengthy AWOL and absent any mitigating factors, the type of discharge directed and the reasons were appropriate. As a result, clemency is not warranted in this case. 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) AR20130008857 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130008857 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1