RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 April 2007
      DOCKET NUMBER:  AR20060013080


      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. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Scott W. Faught               |     |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, that he believes he was unjustly
treated and as a result he went absent without leave (AWOL) to prevent any
further unjust treatment.  He states that he is no longer able to care for
himself and he is trying to get a wartime pension through the Department of
Veterans Affairs (VA); however, they no longer consider him to be eligible
based on his BCD.

3.  The applicant provides two third-party statements in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 9 October 1970, the date of his discharge.  The
application submitted in this case is dated 31 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 that he enlisted in the Regular Army and
entered active duty on 16 April 1968.  He successfully completed basic
combat training at Fort Benning, Georgia, and advanced individual training
(AIT) at Fort Knox, Kentucky.

4.  On 30 August 1968, the applicant completed AIT and was awarded military
occupational specialty (MOS) 11E (Armor Crewman).  He was also assigned to
the United States Overseas Replacement Station, Oakland, California, for
movement and further assignment to the Republic of Vietnam (RVN).

5.  The applicant's record shows that during his active duty tenure, he
earned the National Defense Service Medal and Sharpshooter Marksmanship
Qualification Badge with Rifle Bar.  His record documents no acts of valor,
significant achievement or service warranting special recognition.
6.  On 25 September 1968, when the applicant failed to report to Oakland
for movement to the RVN, he was reported AWOL, and on 25 October 1968, he
was dropped from the rolls.  He remained away until being returned to
military control at the Special Processing Detachment, Fort Benning,
Georgia, on 17 April 1970, at which time he was placed in military
confinement.

7.  On 25 May 1970, a General Court-Martial (GCM) found the applicant
guilty, pursuant to his pleas, of violating Article 86 of the UCMJ by being
AWOL from on or about 25 September 1968 through on or about 17 April 1970.
The resultant sentence from the GCM Military Judge was reduction to the
lowest enlisted grade, confinement at hard labor for nine months,
forfeiture of all pay and allowances, and a BCD.

8.  On 3 September 1970, the United States Army Court of Military Review
found the finding of guilty and sentence pertaining to the applicant, as
approved by proper authority, was correct in law and fact.  It further
determined on the basis of the entire record that finding and sentence
should be approved, and it affirmed the finding of guilty and the sentence.


9.  On 11 September 1970, GCM Orders Number 148, issued by Headquarters,
United States Army Infantry Center and Fort Benning, Fort Benning, Georgia,
determined the guilty finding and sentence on the applicant was affirmed
pursuant to Article 66 of the UCMJ, and that based on the provisions of
Article 71c of the UCMJ having been complied with, ordered the sentence,
including the BCD, be duly executed.  On 9 October 1970, the applicant was
discharged accordingly.  The separation document (DD Form 214) he was
issued at the time confirms he was discharged under the provisions of
chapter 11, Army Regulation
635-200, by reason of court-martial, and that he received a BCD.  It also
shows he completed a total of 5 months and 9 days of creditable active
military service and that he accrued 744 days of time lost due to AWOL and
confinement.

10.  The applicant provides two third-party statements from friends that
indicate the applicant is an upstanding citizen and good husband and
father.

11.  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.

12.  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 contention that his discharge was unjust was carefully
considered.  However, there is insufficient evidence to support his claim
that he was unjustly treated.

2.  The applicant's claim for a VA pension because he is unable to care for
himself and the information contained in the third-party statements he
provided were also carefully considered.  However, while his current
condition is unfortunate and his post service conduct is noteworthy, these
factors alone are not sufficiently mitigating to support an upgrade of his
discharge.

3.  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.

4.  The evidence of record confirms that after the applicant successfully
completed training, he failed to show up for overseas movement to the RVN.
It further shows that he remained AWOL for almost two years before being
returned to military control.  His trial by GCM was warranted by the
gravity of his offense, his conviction and discharge were effected in
accordance with applicable law and regulations, and his rights were
protected throughout the court-martial process.

5.  After a thorough and comprehensive review of the applicant’s military
service record, it is concluded that given his short and undistinguished
record of military service, coupled with the seriousness of the offense for
which he was convicted, clemency would be inappropriate in this case.

6.  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.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 October 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 October 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

___LDS     __JCR   _  __SWF __  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.




                                  _____Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013080                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/04/05                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1970/10/09                              |
|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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