RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 March 2008
      DOCKET NUMBER:  AR20070011737


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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 Bad Conduct
Discharge (BCD) and that his records be corrected to reflect his service in
the Dominican Republic in 1965.

2.  The applicant states, in effect, that his discharge was inequitable
because it was based on one isolated incident in 33 months of service; that
he now knows he suffers from a Post Traumatic Stress Disorder (PTSD) and
the thought of returning to base would have brought back memories of his
time in Vietnam; that he was immature when he entered service; and that he
was recently married and had been unable to spend time with his new wife
during her pregnancy.

3.  The applicant provides the following documents in support of his
application: Self-Authored Statements; Statement In Support of Claim (VA
Form 21-4138), dated 1 August 2007; United States Army Reserve Personnel
Center Official Statement, dated 31 January 1991; Separation Document (DD
Form 214);
Third-Party Statements of Support (5); and Medical Treatment Records that
include Psychologist Progress Notes, Psychiatrist Evaluation and Medical
Facility Discharge Summary.

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 enlisted in the Regular Army and
entered active duty on 17 July 1964, and was trained in and awarded
military occupational specialty (MOS) 13A (Field Artillery).
3.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he was promoted to specialist four (SP4) on 19 November 1965, and that this
is the highest rank he attained while serving on active duty.  It also
shows he was reduced to private first class (PFC) on 23 November 1966, and
to private/E-1 (PV1) on 3 July 1969.

4.  Item 31 (Foreign Service) of the applicant's DA Form 20 shows he served
in the Republic of Vietnam (RVN) from 24 December 1965 through 7 December
1966.

5.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows
that after completing advanced individual training and the basic airborne
course, he was assigned to and served at Fort Bragg, North Carolina, from
12 January through 30 November 1965.  It further shows he served in the RVN
from
29 December 1965 through 23 December 1966, and at Fort Carson, Colorado,
from 22 January 1967 through 4 May 1967, at which time he was dropped from
the rolls (DFR) as a deserter.  Item 38 also shows that upon his return to
military control on 12 May 1969, he was assigned to the Special Processing
Detachment, Fort Sill, Oklahoma.

6.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows
that he earned the following awards during his active duty tenure:
Parachutist Badge; Armed Forces Expeditionary Medal; Vietnam Service Medal;
National Defense Service Medal; RVN Campaign Medal; and Sharpshooter
Marksmanship Qualification Badge with Rifle Bar.

7.  The applicant's record shows that he accepted non-judicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) on two separate occasions.

8.  On 5 January 1965, the applicant accepted NJP for being absent from his
unit without proper authority.  His punishment for this offense was 10 days
of extra duty.

9.  On 23 November 1966, the applicant accepted NJP for two specifications
of being absent without leave (AWOL).  His punishment for these offenses
was a reduction to PFC.

10.  On 4 April 1967, the applicant departed AWOL from his unit at Fort
Carson, Colorado, and was DFR on 4 May 1967.  He remained away for 737 days
until being returned to military control on 9 May 1969.

11.  On 19 June 1969, a General Court-Martial (GCM) found the applicant
guilty, pursuant to his plea, of violating Article 86 of the UCMJ by being
AWOL from on or about 4 April 1967 through on or about 9 May 1969.  The GCM
convening authority approved the resultant sentence, which consisted of a
forfeiture of all pay and allowances, confinement at hard labor for 1 year,
and a dishonorable discharge (DD), in Headquarters, United States Army
Field Artillery Center and Fort Sill, GCM Order Number 48, dated 3 July
1969.

12.  A Review of the Staff Judge Advocate, dated 3 July 1969, contains a
synopsis of the applicant's military background that confirms he served in
the Dominican Republic for three months during his assignment to Fort
Bragg.

13.  On 25 August 1969, the United States Army Court of Military Review,
found the finding of guilty and sentence as approved by the proper
authority correct in law and fact; and having determined on the basis of
the entire record that the finding of guilty and only so much of the
sentence as provided for a BCD, confinement at hard labor for 9 months, and
forfeiture of $60.00 pay per month for 9 months, should be approved, the
same as thus modified was affirmed.

14.  On 13 October 1969, GCM Order Number 1005, issued by Headquarters,
United States Army Disciplinary Barracks, Fort Leavenworth, Kansas,
directed, the provisions of Article 71(c) of the UCMJ having been complied
with, that the sentence as modified be duly executed.  On 27 October 1969,
the applicant was discharged accordingly.  The DD Form 214 he was issued
shows he completed a total of 2 years, 8 months, and 19 days of creditable
active military service and that he accrued 936 days of time lost due to
AWOL and confinement.

15.  On 12 December 1969, after considering the applicant's case, the
Chief, Clemency Branch, Office of The Provost Marshal General, disapproved
clemency for the applicant on behalf of the Secretary of the Army.

16.  The applicant provides five third-party statements of support that all
attest to his good character and citizenship.  He also provides medical
treatment records that includes a Psychiatric Evaluation, dated 3 April
2007, which diagnosed him with the following conditions:  Post Traumatic
Stress Disorder (PTSD); Alcohol Dependence, early partial remission; and
Major Depressive Disorder, Recurrent, Severe without psychotic features,
chronic.  It also shows he suffers from other medical conditions that
include heart problems and back injuries.

17.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 11, in effect at the time,
provided for separating members with a dishonorable or bad conduct
discharge.  It stipulated, in pertinent part, that a Soldier would be given
a BCD pursuant only to an approved sentence of a general or special court-
martial, and that the appellate review must be completed and affirmed
before the sentence is ordered duly executed.

18.  Title 10 of the United States Code, section 1552 as amended does not
permit any redress by this Board of the finality of a court-martial
conviction and empowers the Board to only change a discharge if clemency is
determined to be appropriate.

19.  Army Regulation 635-5 (Separation Documents) prescribes the separation
documents that must be prepared for Soldiers on retirement, discharge,
release from active duty service, or control of the Active Army.  It also
establishes standardized policy for preparing and distributing the DD Form
214, and it provides item-by-item instructions for its preparation.  The
version of the regulation in effect at the time of the applicant's
discharge did not provide for a separate entry to document foreign service
performed in a temporary duty status in the Dominican Republic.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his military records should be
corrected to document his service in the Dominican Republic was carefully
considered.  However, his three months of service in the Dominican Republic
while assigned to Fort Bragg is already a matter of record in documents on
file in his Official Military Personnel File (OMPF) and is supported by his
having been awarded the AFEM for this service.  This service is not a
matter that supports a separate entry on the DD Form 214.  As a result,
there is no error or injustice related to this matter and no further action
is required.  A copy of this Record of Proceedings will remain on file in
the applicant's OMPF and, along with the other documents mentioned, will
serve as a record of his service in the Dominican Republic.

2.  The applicant's request that his BCD be upgraded and the supporting
documents he submitted were also carefully considered.  However, by law,
any redress by this Board of the finality of a court-martial conviction,
after 1949 under the UCMJ, 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 applicant's record reveals an extensive disciplinary history that
includes his acceptance of NJP on two separate occasions and his conviction
by a GCM, which led to his BCD.  His trial by GCM was warranted by the
gravity of his offense, his conviction and discharge were effected in
accordance with applicable law and regulations, and his rights were
protected throughout the court-martial process.

4.  Although the applicant provides third-party statements that attest to
his
good character and citizenship, his record confirms an extensive
disciplinary history that includes his accrual of 936 days of time lost due
to AWOL and confinement.

5.  The applicant's record also shows that clemency was considered and
denied, on behalf of The Secretary of the Army, by the Chief, Clemency
Branch, Office of The Provost Marshal General, on 12 December 1969.  As a
result, even though he completed a tour of duty in the RVN and served in
the Dominican Republic, his military service record was not sufficiently
meritorious to support clemency at the time, nor does it support clemency
at this late date.

6.  The applicant's current medical conditions were also considered and
while they are regrettable, there is no evidence of record that would
indicate these conditions contributed to the misconduct that led to his
discharge, or that shows he suffered from any disabling medical condition
at the time of his discharge.  As a result, these conditions alone are not
sufficiently mitigating to support an upgrade of his discharge at this late
date.

7.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
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

__JEA___  __WDP__  __JLP___  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.




                                  ____James E. Anderholm___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070011737                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/01/                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1969/10/27                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |C-M                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.  1021                |100.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]