RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070007632 


	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 McCant

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), characterized as under other than honorable conditions (UOTHC), be upgraded in order for him to receive VA (Department of Veterans Affairs) benefits.  

2.  The applicant states, in effect, that it has been 40 years since his BCD and he served during the Vietnam era.

3.  The applicant provides no addition 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 was inducted and entered active duty on 19 October 1966, for 2 years, with an established expiration of term of service (ETS) of 18 October 1968.  He successfully completed basic combat training at Fort Polk, Louisiana, and advanced individual training at Fort Sam Houston, Texas.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 91B, Medical Specialist.  He was promoted to pay grade E-3 on 22 April 1967.

3.  He served in Vietnam from 7 April 1967 to 6 April 1968. 

4.  He was convicted by a special court-martial on 2 June 1967, of willfully disobeying a lawful order from his superior noncommissioned officer (NCO) and for making a threat with contempt to his superior NCO and as a result of intoxication was unable to perform his duties.  His sentence consisted of a forfeiture of pay for 3 months, a reduction to pay grade E-1, and confinement at hard labor for 5 months (suspended).

5.  On 12 April 1968, he was convicted, contrary to his plea, by a general court-martial, while serving in Vietnam, on 23 February 1968, of culpable negligence by unlawfully killing another Soldier by shooting him in the abdomen with a rifle.  His sentence consisted of a forfeiture of pay of $50.00 per month for 24 months, confinement at hard labor for 2 years, reduction to pay grade E-1, and to be discharged with a BCD.

6.  On 22 May 1968, the United States Army Judiciary, Office of The Judge Advocate General, Board of Review, affirmed the findings and sentence.

7.  On 4 November 1968, the applicant was discharged from the Army, pursuant to the sentence of a general court-martial, and was issued a BCD.  He had completed 1 year, 3 months, and 22 days of creditable service and had 234 days of lost time due to confinement prior to his scheduled ETS and 17 days of time lost due to confinement subsequent to his normal ETS.

8.  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.  

9.  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.

10.  Army Regulation 635-200, paragraph 3-7a, also 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.

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 special court-martial for willfully disobeying a lawful order, for making a threat, with contempt, to his superior NCO and, as a result of intoxication was unable to perform his duties.  He was also convicted by a general court-martial of culpable negligence by killing another Soldier.  He was discharged pursuant to the sentence of this general court-martial and was issued a BCD when the sentence was affirmed.  

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

4.  The applicant states that he served honorably in Vietnam.  It is evident that his service was not honorable.  He received a special and a general court-martial while serving in Vietnam.

5.  The applicant contends that his BCD should be upgraded in order for him to qualify to receive VA benefits.  The applicant is, it appears, ineligible for VA benefits due to his BCD; however, he is encouraged to seek the counsel of a VA representative for this determination.

6.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his BCD in order to qualify to receive VA benefits.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

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
AR20070007632
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071129
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19681104
DISCHARGE AUTHORITY
AR 635-200, paragraph 11-1b
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.