RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 June 2007
	DOCKET NUMBER:  AR20060015945 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Paul Wright

Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Ronald D. Gant

Member

Mr. Roland C. Heflin

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, clemency by upgrading of his Bad Conduct Discharge (BCD) to a General Discharge.

2.  The applicant states he never deserved a BCD.  He states he served in Vietnam and suffers from post-traumatic stress disorder (PTSD).  He adds he was told his discharge would be upgraded after 10 years, but it wasn't.

3.  The applicant provides a copy of his notification of a denial of service connected disability from the Department of Veterans Affairs (DVA), dated 10 July 2006.  The applicant's application and attachments were submitted for review by his Representative in Congress. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 20 May 1968.  The undated application submitted in this case was received for processing on 15 November 2006.

2.  On 3 September 1965, the applicant was inducted into the Army of the United States for a period of 2 years.  He completed all required training and was awarded military occupational specialty (MOS) 11B1P, Light Weapons Infantryman (Airborne).

3.  He served a tour of duty in Vietnam from 12 March 1966 to 7 March 1967 with the 1st Cavalry Division.

4.  On 11 May 1967, the applicant was honorably discharged for the purpose of reenlistment.  He had 1 year, 8 months, and 9 days of creditable active Federal service.  His separation document shows he was awarded the Parachutist Badge, the National Defense Service Medal, 2 Overseas Service Bars, the Vietnam Service Medal, the Vietnam Campaign Medal, the Combat Infantryman Badge, and the Air Medal.

5.  On 12 May 1967, the applicant enlisted in the Regular Army for a period of 4 years while stationed with the 101st Airborne Division, Fort Campbell, Kentucky.


6.  On 12 July 1967, the applicant was convicted by General Court-Martial for forcibly stealing $30.00 from a lower grade enlisted man (PVT/E-1) on 31 May 1967.  The sentence included discharge from the service with a BCD, forfeiture of all pay and allowances, and confinement at hard labor for 3 years.

7.  On 22 August 1967, the convening authority approved the sentence.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a board of review and the applicant was transferred to the United States Disciplinary Barracks, Fort Leavenworth, Kansas for confinement.

8.  On 11 January 1968, the U.S. Army Board of Review approved the findings, but reduced the sentence to confinement to 2 years.

9.  On 16 April 1968, the United States Court of Military Appeals denied a petition for further review.

10.  On 20 May 1968, the applicant was separated with a BCD under the provisions of Army Regulation 635-204.  His DD Form 214 characterized the applicant's service as "under conditions other than honorable".  The applicant had 356 days of lost time and 19 days of creditable active Federal service on that enlistment.

11.  On 4 June 1969, the Secretary of the Army approved the applicant's release on parole and remitted the unexecuted portion of the sentence to confinement effective 11 June 1969.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge, and provides that a soldier will 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 the affirmed sentence ordered duly executed.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.


14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

15.  The Military Justice Act of 1983 (Public Law 98-209) provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a discharge due to matters which should have been raised in the appellate process, rather it is only empowered to change the severity of the sentence imposed in the court-martial process 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 serious offense of stealing from a junior enlisted Soldier is not in keeping with the standards expected of a Soldier of his grade and time in service.  The applicant's prior good service was diminished by his misconduct and his conviction by a General Court-Martial.  The BCD was appropriate for the offense and clemency in the form of an upgrade of his BCD is not warranted.

2.  Contrary to the applicant’s contention the U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges based on the mere passage of time.  Each case is decided on its own merits when an applicant submits a DD Form 149 requesting a change in discharge.  Upgrades may be warranted if the Board determines that the characterization of service or the reason for discharge were improper, inequitable, or both.  Upgrade may also be warranted if an applicant's post-conviction conduct is extremely meritorious over time such that an upgrade is appropriate as a matter of fairness or equity.  

3.  Eligibility for veterans' benefits does not fall within the purview of the Army.  This Board does not grant relief by upgrading a discharge characterization solely for the purpose of enabling a person to take advantage of Department of Veterans Affairs (DVA) benefits.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __rdg___  __rdh___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





							Margaret K. Patterson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060015945
SUFFIX

RECON

DATE BOARDED
20070614
TYPE OF DISCHARGE
(BCD)
DATE OF DISCHARGE
19680520
DISCHARGE AUTHORITY
AR 635-204
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
105.0000
2.

3.

4.

5.

6.