RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  2 October 2007
	DOCKET NUMBER:  AR20070005298 


	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:


Ms. Ann M. Campbell

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. Redmann

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 discharge. 

2.  The applicant states, in effect, that he served in the Republic of Vietnam and was injured while there.  He further states that he needs medical help for his leg. 

3.  The applicant provides a self-authored statement in support of his application.

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 record shows he enlisted in the Regular Army on 20 January 1967.  Records further show that he completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic) and the highest rank he attained while serving on active duty was specialist four/pay grade E-4.  The applicant served in the Republic of Vietnam during the period 18 April 1968 through 13 April 1969.

3.  The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 17 January 1967, for the wrongful appropriation of an Army utility truck and driving it while drunk. 

4.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal date ETS) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that the applicant was absent without leave (AWOL) during the period 15 August 1969 through 13 September 1969.  It further shows that the applicant was dropped from the rolls as a deserter during the period 14 September 1969 through 31 December 1969. 
5.  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 Convictions) shows that the applicant was AWOL during the period on or about 15 August 1969 to on or about 1 January 1970.

6.  Headquarters, United States Army Garrison Troops, Fort Hood, Texas, Special Court-Martial Order Number 150, dated 4 February 1970, show that the applicant was arraigned and tried before a special court-martial on 12 January 1970 for being AWOL during the period from on or about 15 August 1969 to on or about 1 January 1970.  The applicant pled guilty to the charge and specification of being AWOL and the military judge found the applicant guilty of the charge and specification of being AWOL.  The applicant was sentenced to confinement at hard labor for 2 months, forfeiture of $50 pay for 3 months, reduction to the grade of private/E-1, and restriction to the unit area for 2 months.

7.  Headquarters, United States Army Garrison Troops, Fort Hood, Texas, Special Court-Martial Order Number 150, dated 4 February 1970, further show that the sentence was adjudged on 15 January 1970 and was approved and ordered executed by the convening authority on 4 February 1970.

8.  Item 44 of the applicant's DA Form 20 shows that the applicant was AWOL during the period 17 March 1970 through 16 April 1970.  It further shows that the applicant was dropped from the rolls as a deserter during the period 17 April 1970 through 11 December 1973. 

9.  Item 50 of the applicant's DA Form 20B shows that the applicant was AWOL during the period from on or about 17 March 1970 through on or about 1 May 1973 and during the period from on or about 3 May 1973 through 12 December 1973.

10.  Headquarters, 2nd Armored Division, Fort Hood, Texas, Special Court-Martial Order Number 20, dated 19 February 1974, shows that the applicant was arraigned and tried before a special court-martial on 10 January 1974 for being AWOL during the period from on or about 17 March 1970 through on or about
1 May 1973 and during the period from on or about 3 May 1973 through on or about 12 December 1973.  The applicant pled guilty to the charge and both specifications of being AWOL and the military judge found the applicant guilty of the specifications and the charge of being AWOL.  The applicant was sentenced to be discharged from the service with a bad conduct discharge and confinement at hard labor for 3 months.


11.  Headquarters, 2nd Armored Division, Fort Hood, Texas, Special Court- Martial Order Number 20, dated 19 February 1974, further show that the sentence was adjudged on 10 January 1974, and was approved and the confinement was ordered executed by the convening authority on 4 February 1970.  The convening authority forwarded the record of trial to The Judge Advocate General of the Army for review by the Court of Military Review.  Pending completion of appellate review, the applicant was ordered confined at the United States Disciplinary Barracks (USDB), Fort Leavenworth, Kansas.  The applicant began his 3-months confinement at the USDB on 10 January 1974.  

12.  On 1 May 1974, the convening authority ordered the Bad Conduct Discharge executed.  The convening authority's promulgating order shows the Army completed all required post-trial and appellate review.

13.  The applicant completed his confinement at hard labor and was discharged from the Army on 7 June 1974.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows that he was discharged as a result of court-martial on 7 June 1974, under the provisions of Army Regulation 635-200 (Personnel Separations).  The applicant was issued a Bad Conduct Discharge Certificate.  The applicant had 1,605 days of time lost during his military service.

14.  On 9 January 1979, the applicant was awarded a clemency discharge pursuant to Presidential Proclamation 4313 dated 16 September 1974.  He was issued a DD Form 1953A (Clemency Discharge Certificate) along with a DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) amending his DD Form 214.  Additionally, the applicant received a Presidential Pardon.  Under the Presidential Proclamation, a Pardon did not overturn a Court-Martial conviction, but instead served certain civil rights (such as the right to vote).  Similarly, the Clemency discharge did not restore the applicant with any rights with the Army or the Department of Veterans Affairs (DVA), as the Clemency discharge was still a less than honorable discharge. 

15.  On 14 May 1979, the Army Discharge Review Board (ADRB) reviewed the applicant's military records and all other available evidence and denied the applicant's request for a change in the character and reason of discharge.

16.  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.

17.  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.

18.  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.

2.  On 12 January 1970, the applicant pled guilty before a military judge at a special court-martial for being AWOL during the period from on or about
15 August 1969 to on or about 1 January 1970.  The applicant pled guilty again before a military judge at a second special court-martial to being AWOL during the period from on or about 17 March 1970 to on or about 1 May 1973 and during the period from on or about 3 May 1973 to on or about 12 December 1973.

3.  Trial by 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.  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 to upgrade the applicant's discharge to an honorable or a general discharge.

5.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__amc___  __lmd___  __jcr___  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.



							Ann M. Campbell
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070005298
SUFFIX

RECON

DATE BOARDED
20071002
TYPE OF DISCHARGE
(BCD)
DATE OF DISCHARGE
19740607
DISCHARGE AUTHORITY
AR 635-200, Chap 11
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
106.0008
2.

3.

4.

5.

6.