RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 September 2007
	DOCKET NUMBER:  AR20070003585 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Ronald D. Gant

Member

Mr. Rowland 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 his dishonorable discharge be upgraded.

2.  The applicant states, in effect, that he was too close to finishing his tour in the Republic of Vietnam and that he encountered racial discrimination.  He further states that it was unfair to give him a bad conduct discharge. 

3.  The applicant provided the following in support of his application:

	a.  Certificate of training for completion of 8 hours of security guard pre-assignment training, dated 12 January 1999.

	b.  Certificate of completion of the Occupational Safety and Health Administration (OSHA) 10-hour construction awareness course, dated 16 April 2004.

	c.  Copy of the State of New Jersey Boiler Operator License, dated 13 August 2004.

	d.  Certificate of completion of training of a Powered Industrial Truck training program, dated 26 October 2004.

	e.  Certificate of achievement for completion of the State of New Jersey Nutrition Education Program, dated 2 June 2005.

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's records show that he was inducted in the Army of the United States on 5 July 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  Records further show that the applicant served in the Republic of Vietnam during the period 6 December 1967 through 12 March 1969.  The highest rank the applicant held was private first class/pay grade E-3.

3.  The applicant's records show he was awarded the Purple Heart, the Combat Infantryman Badge (CIB), the National Defense Service Medal, and the Vietnam Service Medal.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 8 September 1967 for being absent without leave (AWOL) during the period on or about 5 September 1967 through on or about 6 September 1967.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that the applicant was confined. 

6.  Item 50 (Synopsis of Specifications, Including Date of Offense) of the applicant's DA Form 20B (Insert Sheet to DA Form 20, Record of Court-Martial Conviction) shows that on 9 April 1968, the applicant was charged with disobeying a lawful order from a superior officer.  On 4 May 1968, a Special Court-Martial found the applicant guilty of this offense.  The facts and circumstances of this Special Court-Martial are not available for review with this case.  However, the DA Form 20B shows that the applicant was sentenced to confinement at hard labor for 6 months, forfeiture of $68 per month for 6 months, and reduction to the grade of private/pay grade E-1. 

7.  Headquarters, 2nd Battalion, 39th Infantry, Special Orders Number 16, dated 10 June 1968, show that the applicant's unexecuted portion of the sentence to confinement at hard labor for 6 months was suspended for 5 months, at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence to confinement would be remitted without further action.

8.  Headquarters, 2nd Battalion, 39th Infantry, Special Orders Number 18, dated 16 June 1968, show that the suspension by Special Orders Number 16, dated 10 June 1968, was vacated and the unexecuted portion of the applicant's sentence to confinement at hard labor for 6 months would be duly executed.  The Orders further show that the applicant was ordered confined in the Republic of Vietnam.

9.  Headquarters, 2nd Battalion, 39th Infantry, Special Orders Number 24, dated 16 July 1968, show that the applicant's unexecuted portion of the sentence to confinement at hard labor for 6 months was suspended for 4 months, at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence to confinement would be remitted without further action.

10.  Headquarters, 2nd Battalion, 39th Infantry, Special Orders Number 35, dated 6 August 1968, show that the suspension by Special Orders Number 24, dated 16 July 1968, was vacated and the unexecuted portion of the applicant's sentence to confinement at hard labor for 6 months was duly executed.  The Orders further show that the applicant was ordered confined in the Republic of Vietnam Installation Stockade, Long Binh.

11.  Headquarters, 2nd Battalion, 39th Infantry, Special Orders Number 109, dated 28 September 1968, show that the applicant's unexecuted portion of the sentence to confinement at hard labor for 6 months was suspended effective 6 October 1968 until 3 November 1968, at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence to confinement would be remitted without further action.

12.  Headquarters, U.S. Army, Ryukyu Islands, General Court-Martial Orders Number 12, dated 3 March 1969, show that the applicant appeared before a General Court-Martial that convened at Fort Buckner, Okinawa, Japan.  The Court found the applicant guilty of the offense of aggravated assault consistent with his pleas.  He was sentenced to be confined at hard labor for one year, forfeiture of pay and allowances for 12 months, and to be dishonorably discharged. 

13.  On 3 March 1969, the convening authority approved the sentence of confinement to hard labor for one year, forfeiture of pay for 12 months (the forfeiture applied to pay and allowances becoming due on and after the date of the action), and a dishonorable discharge.  The convening authority forwarded the record of trial to The Judge Advocate General of the Army for review by a Board of Review.  Pending completion of appellate review, the applicant was ordered confined at the United States Disciplinary Barracks (USDB), Fort Leavenworth, Kansas.  

14.  On 5 March 1969, the applicant was transferred from Okinawa, Japan, to the USDB, for completion of the sentenced confinement. 

15.  The applicant's DD Form 1478 (Prisoner's Summary Continuation Sheet), prepared by the USDB and dated 28 April 1969, shows that on 7 March 1969 the applicant refused to work, was disrespectful toward the guards, and used profanity and that on 24 March 1969, the applicant was out of place and disobeyed an order. The DD Form 1478 further shows that the applicant was counseled.

16.  On 22 May 1969, the Board of Review, found the findings of guilty and sentence as approved by proper authority correct in law and fact and affirmed the findings of guilty and sentence. 

17.  The applicant's PMG(K) Form 82 (Clemency and Parole Action Record), dated 29 May 1969, shows that the applicant was denied clemency.

18.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Orders Number 674, dated 7 July 1969, show that the applicant's sentence to dishonorable discharge, forfeiture of pay for 12 months, forfeitures to apply to pay and allowances becoming due on and after the date of the convening authority's action, and confinement at hard labor for 1 year, was duly executed.

19.  On 29 July 1969, the applicant was held in Administrative and Disciplinary Segregation for unsuitable adjustment.  He was released from the Maximum Security Area on 10 November 1969 and returned to the General Population.

20.  On 11 August 1969, the applicant was dishonorably discharged from the Army.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed a total of 10 months and 26 days of creditable active military service with 438 days of lost time due to confinement. 

21.  There is no evidence in the available records which show that the applicant was treated differently because of race.  Additionally, there is no evidence in the available records which show that the applicant requested assistance from appropriate military authorities concerning racial issues or discrimination.

22.  There is no evidence in the available records which show that the applicant's race was a factor in his courts-martial or that race was the cause of his acts of indiscipline.

24.  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 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.

25.  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.

26.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because of injustice.

2.  The applicant's record reveals a history of indiscipline to include nonjudicial punishment under Article 15 of the UCMJ for being AWOL, a Special Court-Martial for disobeying a lawful order from a superior officer, and a General Court-Martial for aggravated assault.

3.  Trial by General Court-Martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

4.  By law, any redress by this Board of the finality of a court-martial conviction 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.



5.  After review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis for a grant of clemency in the form of an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jev___  __rdg___  __rch___  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.



							James E. Vick
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070003585
SUFFIX

RECON

DATE BOARDED
20070916
TYPE OF DISCHARGE
(DD)
DATE OF DISCHARGE
19690811
DISCHARGE AUTHORITY
AR 635-200, Chap 11
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
106.0008
2.

3.

4.

5.

6.