RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 March 2007
      DOCKET NUMBER:  AR20060010094


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. David K. Hassenritter         |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his bad conduct
discharge (BCD).

2.  The applicant states, in effect, he believes the court-martial held in
the Republic of Vietnam (RVN) did not have all the facts pertinent to his
case.  He claims he was presumed to be guilty by his lawyer from the start
of his trial.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; Separation Document (DD Form 214);
Psychiatrist Statement; and Congressional Inquiry.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 9 September 1970, the date of his discharge.  The
application submitted in this case is dated 11 July 2006.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows he was inducted into the Army and entered
active duty on 10 January 1968.  He was trained in, awarded, and served in
military occupational specialty (MOS) 64A (Light Vehicle Driver), and the
highest rank he attained while serving on active duty was private first
class (PFC).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 26 February 1969 through 26 September 1969, at which
time he was placed in confinement.  Item 41 (Awards and Decorations) shows
he earned the National Defense Service Medal, Vietnam Service Medal, and
the Expert Marksmanship Qualification Badge with Rifle Bar.

5.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.

6.  The applicant's disciplinary history includes his acceptance of non-
judicial punishment (NJP) under the provisions of Article 15 of the Uniform
Code of Military Justice (UCMJ) on the following five separate occasions
for the offenses indicated:  25 October 1968, for being absent without
leave (AWOL) for 17 days; 4 November 1968, for three specifications of
failing to go to his appointed place of duty at the prescribed time; 3
December 1968, for being AWOL from 2 through 3 December 1968; 11 December
1968, for two specifications of failing to go to his appointed place of
duty at the prescribed time; and 20 April 1969, for being disrespectful in
language toward a superior warrant officer and for failing to go to his
appointed place of duty at the prescribed time.

7.  On 17 December 1968, a Special Court-Martial (SPCM) at Fort Gordon,
Georgia, found the applicant guilty of violating Article 113 of the UCMJ by
sleeping on his guard post.  The resultant sentence was confinement for
6 months (Suspended), forfeiture of $40.00 per month for 3 months, and
reduction to private/E-1 (PV1).

8.  On 3 November 1969, a General Court-Martial (GCM) in the RVN found the
applicant guilty, pursuant to his pleas, of violating the following
Articles of the UCMJ by committing the offenses indicated:  Article 128, by
committing an assault upon another Soldier by shooting at him with a
dangerous weapon, to wit a rifle; Article 134, by wrongfully possessing
15.0 grams, more or less, of marijuana; Article 92, by violating a general
regulation by having in his possession 20 tablets, more or less, of a
dangerous drug, to wit binoctal.  The resultant sentence from the GCM
Military Judge was a reduction to PV1, confinement at hard labor for 4
years, forfeiture of all pay and allowances, and a BCD.  The GCM convening
authority approved only so much of the sentence that provided for reduction
to PV1, confinement at hard labor for 2 years, forfeiture of all pay and
allowances, and a BCD.

9.  On 30 June 1970, The Acting Chief, Clemency Branch, Correction
Division, Office of The Provost Marshal General, Washington D.C.,
considered and denied the applicant’s clemency on behalf of the Secretary
of Army.  This action did direct the applicant's release on parole,
effective on or after 15 September 1970.

10.  On 31 August 1970, the United States Army Court of Military Review
found the findings of guilty and the sentence as approved correct in law
and fact, and on the basis of the entire record, determined that only so
much of the approved sentence on the applicant that provided for a BCD,
confinement at hard labor for 1 year, forfeiture of all pay and allowances,
and reduction to PV1 should be approved.

11.  On 8 September 1970, GCM Orders Number 850, issued by Headquarters,
United States Disciplinary Barracks, Fort Leavenworth, Kansas, affirmed
only so much of the GCM sentence promulgated in 25th Infantry Division GCM
Orders Number 4, dated 9 February 1970, that provided for a BCD, forfeiture
of all pay and allowances becoming due on or after the date of the
convening authority's action, confinement at hard labor for 1 year, and
reduction to PV1.  It further directed, Article 71(c) of the UCMJ having
been complied with, that the sentence, as modified, be duly executed.

12.  The record does not reflect the action, if any, by the United States
Court of Military Appeals.  However, the convening authority's promulgating
order executing the BCD, dated 8 September 1970, shows that all required
post-trial reviews were conducted.

13.  On 9 September 1970, the applicant was separated after completing a
total of 1 year, 7 months, and 29 days of creditable active military
service and having accrued 367 days of time lost due to AWOL and
confinement.  The DD Form 214 he was issued at the time shows he separated
with a BCD under the provisions of chapter 11, Army Regulation 635-200, by
reason of court-martial.

14.  On 20 June 1974, The Adjutant General, notified the applicant that his
application for correction of military records was denied by the ABCMR
based on the lack of a sufficient basis for review.  The applicant was also
advised on the procedures for applying for an Exemplary Rehabilitation
Certificate authorized by Public Law 690, 89th Congress, which was a
program administered by the Department of Labor.  There is no indication
that applicant ever made application for this certificate.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 11 of the regulation in effect
at the time of the applicant's discharge provided the policies and
procedures for separating members with a dishonorable or bad conduct
discharge.  It stipulated, in pertinent part, that a Soldier would be given
a BCD pursuant only to an approved sentence of a general or special court-
martial and that the appellate review must be completed and affirmed before
the sentence is ordered duly executed.

16.  Title 10 of the United States Code, section 1552 as amended does not
permit any redress by this Board of the finality of a court-martial
conviction and empowers the Board to only change a discharge if clemency is
determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that the GCM conducted in the RVN on
3 November 1969, did not have all the facts of his case before it, and that
his legal counsel believed he was guilty throughout the trial were
carefully considered.  However, there is insufficient evidence to support
these claims.

2.  The evidence of record confirms the applicant’s trial by GCM was
warranted by the gravity of the offenses for which he was charged.
Conviction and discharge were effected in accordance with applicable law
and regulations and his rights were protected throughout the court-martial
process.  By law, any redress by this Board of the finality of a court-
martial conviction, after 1949 under the UCMJ, is prohibited.  The Board is
only empowered to change a discharge if clemency is determined to be
appropriate to moderate the severity of the sentence imposed.

3.  After a thorough and comprehensive review of the applicant’s military
service record, it is concluded that given his undistinguished record of
military service, characterized by his extensive record of misconduct,
coupled with the seriousness of the offenses for which he was convicted on
3 November 1969, clemency would be inappropriate in this case.

4.  In order to justify correction of a military record, the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 September 1970, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 8 September 1973.  He failed to file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__KAN   _  __DKH   _  ___LMD_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____Kathleen A. Newman____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010094                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/20                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1970/09/09                              |
|DISCHARGE AUTHORITY     |AR 635-200 C11                          |
|DISCHARGE REASON        |C-M                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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