RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 December 2007
	DOCKET NUMBER:  AR20070008643 


	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. William D. Powers

Chairperson

Mr. Michael J. Flynn

Member

Ms. Sherry J. Stone

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 an upgrade of his discharge.

2.  The applicant states that he was wounded in the Republic of Vietnam and suffered from Post Traumatic Stress Syndrome (PTSD).  He further adds that all of his actions that led to his discharge are secondary to his PTSD disability which is combat-related.  He concludes that he is in need of help and the discharge upgrade will help him get medical benefits through the Department of Veterans Affairs (DVA).

3.  The applicant provided a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); DD Form 215 (Correction to the DD Form 214); DA Form 20 (Enlisted Qualification Record); and Special Court-Martial Orders Number 46, dated 21 April 1972, 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 show that he enlisted in the Regular Army on 14 May 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Field Artillery Crewman).  The highest rank he attained while serving on active duty was corporal/pay grade E-4. 

3.  The applicant's records show that he served in the Republic of Vietnam during the period 21 September 1970 through 16 December 1970.  His records further show that he was awarded the Purple Heart, the National Defense Service Medal, the Vietnam Service Medal with one bronze service star, the Republic of 

Vietnam Campaign Medal with Device (1960), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Expert Marksmanship Qualification Badge with Rifle Bar, and 2 Overseas Service Bars.

4.  On 3 March 1972, the applicant pled guilty at a Special Court-Martial to one specification of having a privately-owned firearm in the barracks on 13 December 1971 and one specification of assaulting another Soldier on 31 December 1971.  The applicant was sentenced to forfeiture of $150 pay for two months, reduction to the grade of private/E-1, confinement at hard labor for 45 days, and a Bad Conduct Discharge.  However, on 21 April 1972, the Bad Conduct Discharge and the confinement at hard labor for 45 days were both suspended for six months.

5.  Item 44 (Time Lost) of the applicant's DA Form 20 shows that the applicant was absent without leave (AWOL) during the period 17 April 1972 through
2 October 1972.  

6.  On 8 August 1972, the Bad Conduct Discharge was affirmed on appellate review.  Although the Special Court-Martial was affirmed, the Bad Conduct Discharge could not be served since the applicant was AWOL on that date.  

7.  The applicant's records show that he returned from AWOL to military control on 3 October 1972.  

8.  Although not available for review with this case, it appears that the applicant attempted to request separation under the provisions of chapter 10 (for the good of the service) of Army Regulation 635-200 (Personnel Separations) for the AWOL offense.  However, on 20 November 1972, the separation authority disapproved his request (only the disapproval endorsement is in his file).

9.  The orders vacating the suspension of the Bad Conduct Discharge is not on file and therefore not available for review with this case.

10.  The applicant's records show that he was discharged on 21 December 1972 The DD Form 214 he was issued shows that he was discharged under the provisions of chapter 11 of Army Regulation 635-200 with a Bad Conduct Discharge Certificate.  This form further shows the applicant had completed
3 years, 1 month, and 20 days of creditable military service and had 168 days of lost time.




11.  On 11 September 1978, the Army Discharge Review Board (ADRB) notified the applicant that it reviewed his military records and all other available evidence and denied his request for a change in his characterization of service and reason for discharge.

12.  The applicant apparently requested a personal appearance hearing in Los Angeles, California, which was granted with a scheduled appearance date in September 1980.  However, on 31 December 1980, the ADRB notified the applicant that since he failed to respond to his September 1980 scheduling notification his case was rescheduled for a record review.  But since he previously received a record review of his case on 19 July 1978, he was ineligible for another record review.  Therefore, his case was administratively closed.

13.  There is no indication in the available records that show the applicant suffered any traumatic experience resulting from his service in the Republic of Vietnam or that he sought counseling from appropriate military authorities.  Additionally, there is no indication in the available records which show that the applicant's traumatic experience was a factor in his court-martial or the cause of his absence without leave or that he has been diagnosed as suffering from PTSD.

14.  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.

15.  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.

16.  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.  The applicant's record reveals a pattern of indiscipline that included trial by a Special Court-Martial and a long period of AWOL.  The 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.  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.

3.  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. 

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 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

__wdp___  __mjf___  __sjs___  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.



							William D. Powers
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20070008643
SUFFIX

RECON

DATE BOARDED
20071211
TYPE OF DISCHARGE
(BCD)
DATE OF DISCHARGE
19721221
DISCHARGE AUTHORITY
AR 635-200, Chap 11
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
106.0008
2.

3.

4.

5.

6.