RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 October 2007
      DOCKET NUMBER:  AR20070006270


      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             |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Mr. Ronald D. Gant                |     |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, that his discharge be upgraded to
honorable.

2.  The applicant states that he received an honorable discharge for his
service in Vietnam in 1969 and regrets that he went AWOL (Absent Without
Leave) once he returned to America.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) in support of this
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 enlisted in the Regular Army on 29 June 1966, for a
period of
3 years.  He completed the required training and was awarded military
occupational specialty 64B (Heavy Vehicle Equipment Driver).  The highest
rank he attained while serving on active duty was Specialist Four (SP4)/pay
grade
E-4.

3.  On 2 September 1968, the applicant was discharged honorably for the
purpose of immediate reenlistment in the Regular Army.  The DD Form 214 he
was issued shows that he served 2 years, 2 months and 4 days of active
service and he was issued the National Defense Service Medal, the Republic
of Vietnam Campaign Medal, the Vietnam Service Ribbon, and 1 Overseas
Service Bar during this enlistment.

4.  On 3 September 1968, the applicant reenlisted in the Regular Army for
3 additional years.  He continued to serve in MOS 64B (Heavy Duty Equipment
Driver).  The highest rank he attained while serving on this tour was
Private, (PVT), pay grade E-1.

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

6.  On 15 January 1969, the applicant was convicted by a special court-
martial of driving with no drivers’ license in his possession on or about
12 December 1968, and two specifications of being AWOL.  He was sentenced
to confinement at hard labor for 6 months, a forfeiture of $73.00 per month
for 6 months, and reduction to pay grade E-1.

7. On 2 July 1969, the applicant was convicted by a special court-martial
of being AWOL from 5 May to 13 June 1969.  He was sentenced to confinement
at hard labor for 4 months and a forfeiture of $70.00 per month for 4
months.

8.  On 4 September 1969, the applicant was convicted by a special court-
martial of being AWOL from 8 to 12 July 1969 and of escape from lawful
confinement in the post stockade.  He was sentenced to be discharged from
the service with a bad conduct discharge.

9.  Special Court Martial Order Number 53, Headquarters, US Army Training
Center, Infantry and Fort Lewis, Fort Lewis, Washington, dated 21 November
1969, approved the sentence, except for the bad conduct discharge.  The
record of trial was forwarded to the Court of Military Review.

10.  On 7 January 1970, the U.S. Army Court of Military Review affirmed the
findings.  However, the court remanded the case for a sentence rehearing
due to an instructional error by the military judge.  On 20 March 1970, a
military judge conducted a rehearing and sentenced the applicant to a bad
conduct discharge.

11.  Special Court Martial Order Number 114, Headquarters, US Army Training
Center, Infantry and Fort Lewis, Fort Lewis, Washington, dated 26 May 1970,
approved  the sentence and ordered that the record of trial be forwarded to
the Judge Advocate General of the Army for review by the Court of Military
Review.  The applicant was retained in the command pending completion of
the appellate review.

12.  On 21 August 1970, the U.S. Army court of Military Review affirmed the
findings.  On 10 September 1970, the convening authority ordered the bad
conduct discharge executed.

13.  On 17 September 1970, the applicant was discharged under the
provisions of Army Regulation 635-204, with an Under Other Than Honorable
Conditions Discharge Certificate.  The DD Form 214 issued to him at the
time, confirms the applicant completed a total of 4 years, 2 months and 20
days of creditable active military service.

14.  On 28 January 1985, the Army Discharge Review Board (ADRB) denied the
applicant's petition for an upgrade his discharge and ordered that the
applicant’s DD Form 214 be corrected to show that he had 354 lost days due
of AWOL.

15.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10, United States
Code, section 1552(f), the authority under which this Board acts, the Army
Board for Correction of Military Records is not empowered to set aside a
conviction nor is the Board authorized to take action with respect to court-
martial and related administrative records pertaining to court-martial
cases, except as described below.  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.  The Board also has the limited authority to correct records to
accurately reflect appellate actions.

16.  Army Regulation 635-200 (Personnel Separations), currently in effect
sets forth the basic authority for the separation of enlisted personnel.
Paragraph 14 of this regulation establishes policy and prescribes
procedures for separating members for misconduct.  Specific categories
include minor disciplinary infractions, a pattern of misconduct, commission
of serious offense, conviction by civil authorities, desertion, or absences
without leave.  Action will be taken to
separate a member for misconduct when it is clearly established that
rehabilitation is impracticable or is unlikely to succeed.  A discharge
under other than honorable conditions is normally considered appropriate.

17.  Army Regulation 635-200 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.

18.  Army Regulation 635-200 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.
DICUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgrade to
honorable.

2.  The evidence of record shows the applicant was convicted by three
special courts-martial and he received a bad conduct discharge.  Trial by
special court-martial was warranted by the serious nature of the offenses
for which he was charged.  The sentence is commensurate with the misconduct
of which the applicant was convicted.  The applicant has established no
basis for granting clemency.

3.  The evidence of record confirms that all requirements of law and
regulation were met and the applicant’s rights were fully protected
throughout the separation process.  The record further shows the
applicant’s discharge accurately reflects his overall record of service.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__CD ___  __CAD __  __RDG__  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.




                                          _Carmen Duncan____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20070006270                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/10/30                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |17 September 1970                       |
|DISCHARGE AUTHORITY     |AR 635-204. . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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