RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070007613 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Jeanette McCants

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, that his bad conduct discharge (BCD) be upgraded.

2.  The applicant states, he had served his country honorably for 4 years and 10 months.  After his tour in Vietnam, he returned to the United States and had only 2 more months to go before his discharge when he began to have problems in life.  At the time, he did not understand fully what they were and did not deal with them correctly.  Since then he has suffered greatly in life.  He has turned his life around and has earned a Bachelor's and Master's Degree and is working toward a Doctorate Degree.  He does believe under the circumstances that if he had not reenlisted and gone to Vietnam, he would have completed his first enlistment honorably and would have his fully honorable discharge today.  He requests that he be granted an "honorable" discharge.

3.  The applicant provides no additional documentation in support of his request. 

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 22 September 1966, for 3 years, with an established expiration of term of service (ETS) of 21 September 1969.  He successfully completed basic combat training and advanced individual training at Fort Jackson, South Carolina.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS) 76A, Supply Clerk.  He was promoted to pay grade E-4 on 30 August 1967.  


3.  The applicant continued to serve until he was honorably discharged on 21 September 1967, for the purpose of immediate reenlistment, while serving in Germany.  He reenlisted on 22 September 1967, for 4 years, with an established ETS of 21 September 1971.  He was promoted to Specialist Five (SP5/E-5) on 10 March 1970.  

4.  He served in Germany from 6 February 1967 to 18 October 1968 and in Vietnam from 13 January 1970 to 15 December 1970. 

5.  On 1 June 1971, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for unlawfully making and uttering checks on 16 and 24 March 1971 then knowing that he did not have sufficient funds in the bank for payment of said checks upon their presentment.  

6.  On 28 December 1971, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 1 July 1971 to 29 November 1971.  His sentence consisted of a forfeiture of pay, 30 days restriction, and reduction to the pay grade of E-4.

7.  The applicant was convicted, consistent with his plea by a general court-martial on 11 October 1973, of being AWOL from 18 January 1972 to 17 August 1973.  His sentence consisted of a forfeiture of all pay and allowances, a reduction to pay grade E-1, and a bad conduct discharge.

8.  On 26 June 1974, the United States Army Court of Military Review affirmed the findings and sentence to correctly reflect deferral of the forfeitures.

9.  On 9 September 1974, the general court-martial convening authority directed that, Article 71(c) having been complied with, the sentence, as thus modified, would be duly executed.  The GCMO further directed that the unexecuted portion of the sentence to forfeiture of all pay and allowances would be remitted effective the date the applicant was discharged from the Army.

10.  On 1 October 1974, the applicant was discharged with a BCD from the Army pursuant to the sentence of a general court-martial.  He had served 4 years, 10 months, and 7 days of creditable service and had 83 days of lost time due to AWOL prior to his scheduled ETS and 700 days lost time due to AWOL subsequent to his normal ETS.



11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1(b) of the regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after affirmation of the sentence imposed.

12.  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.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.

14.  Title 10, United States Code, section 1552, as amended, does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.  Trial by court-martial was warranted by the gravity of the offenses charged.
Conviction and discharge were effected in accordance with applicable law and regulation.
 
2.  The evidence of record shows that the applicant was convicted by a summary court-martial for being AWOL from 1 July 1971 to 29 November 1971 and by a general court-martial for being AWOL from 18 January 1972 to 17 August 1973.  
He was also a recipient of nonjudicial punishment for disciplinary infractions.  He was discharged pursuant to the sentence of a general court-martial and his sentence to a BCD was affirmed.  

3.  The applicant has provided no evidence to show that his discharge was unjust and he has not provided evidence sufficient to mitigate the character of his discharge.

4.  The evidence shows that the applicant completed 5 years, 10 months, and 7 days of creditable service.  He served in Vietnam during his second enlistment from 13 January 1970 to 15 December 1970.  Upon his return from Vietnam, he had more than 2 months remaining until his normal ETS of 21 September 1971.  

5.  The applicant alleges that his problems began after his return from Vietnam and does not understand fully what they were and did not deal with them correctly.  It is noted that only he could have known what his problems were but he failed to reveal them.  However, he resorted to AWOL instead of requesting assistance from his chain of command which would have provided and/or requested the assistance that he needed from military authorities for his problems.

6.  The applicant contends that he has suffered greatly in life, has turned his life around, has earned a Bachelor's and Master's Degree, and is currently working toward a Doctorate.  These degrees are unavailable for review by the Board.  His post-service conduct is not sufficient as a basis to upgrade his bad conduct discharge, particularly in view of his misconduct and offenses.  

7.  The applicant believes that under the circumstances, had he not reenlisted and gone to Vietnam, he would have completed his first term of enlistment honorably and would have his fully honorable discharge today.  The evidence of record shows the applicant's first period of service was honorable when he completed 1 year of active service before he was discharged for immediate reenlistment, while serving in Germany.  There is no evidence to show that he was coerced into reenlisting or accepting an assignment to Vietnam.

8.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.

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



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__J_____  __JM ___  ___SWF_  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.




_____John T. Meixell_____
          CHAIRPERSON




INDEX

CASE ID
AR20070007613
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071129
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19741001
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.