RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070010228 


	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. David K. Haasenritter

Chairperson

Mr. James R. Hastie

Member

Mr. Edward E. Montgomery

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 that he received a letter from the Department of the Army in 1972, advising him that his discharge was upgraded.  He took the paperwork to the Liberty County Service Officer, Liberty, Texas, and left the paperwork there to be placed on file since he was working at another location.  When he returned from an out-of-state job, the person with whom the applicant left the paperwork, had died and nobody had any record of the paperwork the applicant left.  The county clerk advised the applicant that all previous records in the county service office had been destroyed.  He concludes that he requested his military records from the National Personnel Records Center, but all they could find was his original DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with no change noted to the character of his discharge.  

3.  The applicant provides a copy of his DD Form 214 and a copy of DD Form 1300 (Report of Casualty), dated 25 September 1970, 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 that he was inducted in the Army of the United States on 9 May 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank he attained during his military service was specialist four/pay grade E-4 (Temporary).

3.  The applicant's record shows that he served in the Republic of Vietnam during the period 10 January 1967 through 16 January 1968.
4.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Combat Infantryman Badge, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and two Overseas Service Bars.  The applicant's records do not show any significant acts of valor during his military service.

5.  On 9 September 1966, the applicant pled guilty at a Summary Court-Martial for one specification of being absent without leave (AWOL) from on or about 22 August 1966 to on or about 28 August 1966.  The Court-Martial sentenced him to forfeiture of $65.00 pay.

6.  On 10 November 1966, the applicant pled guilty at a second Summary Court-Martial for one specification of disobeying a lawful order from an NCO to go to make-up training on 22 October 1966.  The Court-Martial sentenced the applicant to confinement at hard labor for one month and forfeiture of $25.00 pay. However, on 25 November 1966, the unexecuted portion of the sentence to confinement at hard labor for one month was remitted.

7.  The applicant's record reveals a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 19 December 1966, for being AWOL on 15 December 1966.  His punishment consisted of forfeiture of 14 days of restriction, 14 days of extra duty, and forfeiture of $25.00 pay for one month.

8.  On 9 June 1967, the applicant pled guilty at a General Court-Martial for one specification of disobeying a lawful order from a superior commissioned officer to surrender his weapon on 20 March 1967; two specifications of disobeying a lawful order from a superior commissioned officer not to drink on 20 March 1967; one specification of menacing a superior officer with a dangerous weapon and threatening to kill him on 20 March 1967; and two specifications of pointing a loaded and dangerous weapon at two platoon sergeants on 20 March 1967.  The Court-Martial sentenced the applicant to be dishonorably discharged from the service, forfeiture of all pay and allowances, confinement at hard labor for 10 years, and reduction to the grade of private/pay grade E-1. 

9.  On 7 September 1967, the convening authority approved a reduced sentence of dishonorable discharge, confinement at hard labor for two years, forfeiture of all pay and allowances, and reduction to private/E-1.  He then further suspended, for two years, the dishonorable discharge; confinement at hard labor for two years; and forfeitures greater than $65.00 per month for 6 months.  

10.  On 3 January 1968, while a member of Company B, 3rd Battalion, 47th Infantry in the Republic of Vietnam, and scheduled to depart the Republic of Vietnam on 8 January 1968, the applicant was reported missing in action.  The applicant was suspected of being AWOL because he was under a suspended sentence of confinement at hard labor and dishonorable discharge.  However, intelligence reports received on 4 January 1968 confirmed that the applicant was captured.  A Report of Casualty on missing status was not issued. 

11.  On 12 January 1968, a pilot of a military aircraft sighted what he thought were three enemy soldiers.  He attacked the group, killing two of the enemy soldiers.  The third individual waived a recognition signal and was picked up by the pilot.  He turned out to be the applicant, who was then returned to military control on the same day.  

12.  On 4 March 1968, the unexecuted portion of the applicant's approved and suspended sentence was further suspended for one year.  

13.  The applicant's record reveals more disciplinary history which includes his acceptance of NJP punishment under the provisions of Article 15 of the UCMJ as follows:

	a.  on 25 March 1968, for disobeying a lawful order on or about 21 March 1968.  His punishment consisted of 14 days of restriction and 14 days of extra duty; and

	b.  on 16 April 1968, for failing to go to his appointed place of duty on 12 April 1968.  His punishment consisted of forfeiture of $50.00 pay for one month and 30 days of restriction.

14.  On 4 March 1968, a General Court-Martial Order Number 7, published by Headquarters, 2nd Armored Division, Fort Hood, TX, by authority of Article 66 of the UCMJ, had reduced the previous General Court-Martial sentence to bad conduct discharge, forfeiture of all pay and allowances, confinement for 1 year, and reduction to private/E-1.   

15.  On 17 May 1968, the applicant's previous General Court-Martial sentence of bad conduct discharge, forfeiture of all pay and allowances, and confinement for one year was ordered executed, and the applicant was ordered confined at the 
U.S. Disciplinary Barracks, Fort Leavenworth, Kansas.  On 5 July 1968, the unexecuted portion of the sentence that pertained to confinement at hard labor for one year was remitted effective the date of his discharge from the Army.  

16.  On 9 July 1968, the applicant was discharged with an Under Other Than Honorable Conditions Discharge.  The DD Form 214 he was issued shows that he was discharged under the provisions of chapter 11 of Army Regulation      635-200 (Personnel Separations) and that he completed 1 year, 11 months, and 29 days of creditable service; had 43 days of lost time due to AWOL; and had 52 days of lost time due to confinement.

17.  On 22 December 1969, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

18.  There is no indication in the available records which show that the Department of the Army issued the applicant a letter advising him that his discharge was upgraded. 

19.  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 (ABCMR) 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.

20.  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.

21.  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.  There is no evidence in the applicant's records that his discharge was upgraded or that he was granted clemency.

3.  The applicant's record reveals a pattern of indiscipline, including three Article 15’s and two Summary Courts-Martial, culminating in his trial by General Court-Martial, which 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 characterized 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.

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 upgrade to his discharge.  Moreover, through an apparent administrative error, his DD Form 214 shows an "other than honorable discharge" instead of the sentenced "bad conduct discharge."  Thus, by a windfall, the applicant has already received an upgrade.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__dkh___  __jrh___  __eem___  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.



						David K. Haasenritter
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.