IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080003622 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, upgrade of the character of service of his discharge.

2.  The applicant states, in effect, that he was treated unjustly, served his country in combat, was diagnosed with Post Traumatic Stress Disorder (PTSD), and would like to receive medical treatment by the Department of Veterans Affairs (VA) for his post-combat deficiencies.

3.  The applicant provides no additional documentary evidence.

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 military service records show he enlisted in the U.S. Army Reserve and entered active duty in the Regular Army for a period of 3 years on 20 July 1970.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's military service records contain a copy of a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 7 January 1971.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about 0700 hours, 6 January 1971, without authority, failing to go at the time prescribed to his appointed placed of duty, to wit: work formation.  The punishment imposed was to be reduced to the grade of private/pay grade E-1 and a forfeiture of $31.00 per month for 1 month.

4.  The applicant’s military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 31 (Foreign Service) shows the applicant served in the Republic of Vietnam from 3 March 1971 through 17 August 1971.  Item 44 (Time Lost Under Section 972, Title 10, United States Code, and Subsequent to Normal Date ETS [Expiration Term of Service]) shows the applicant was absent without leave (AWOL) for 676 days from 11 September 1971 through 19 July 1973, AWOL for 39 days from 20 July 1973 through 28 August 1973, and in confinement (CONF) for 154 days from 6 September 1973 through 12 February 1974.  His records also contain a DA Form 20B (Insert Sheet to DA Form 20 - Record of Court-Martial Conviction) that shows a General Court-Martial convened pursuant to Headquarters, U.S. Army Training Center, Fort Gordon, Georgia, General Court-Martial Order Number 113, and the applicant was charged with AWOL from on or about 11 September 1971 to on or about
29 August 1973.  This document also shows the applicant was sentenced to confinement at hard labor for 7 months, a total forfeiture of pay, a bad conduct discharge, and reduction to the grade of private (E-1).

5.  The applicant’s military service records contain a copy of Headquarters,
U.S. Army School/Training Center and Fort Gordon, Fort Gordon, Georgia, General Court-Martial Order Number 113, dated 7 November 1973.  This document shows the applicant was charged with violation of Article 86, UCMJ, with the specification that, on or about 11 September 1971, without authority, did absent himself from his unit, to wit: Company A, 1st Battalion, 503rd Infantry, 173rd Airborne Brigade, located at Fort Campbell, Kentucky, and did remain so absent until on or about 29 August 1973.  The applicant entered a plea of guilty, was found guilty of the Specification and Charge, and his sentence was adjudged on 11 October 1973.  The applicant’s sentence was to be discharged with a bad conduct discharge, to be confined at hard labor for 8 months and a forfeiture of all pay and allowances, and to be reduced to the grade of private (E-1).  No previous convictions were considered.  On 7 November 1973, the convening authority approved only that portion of the sentence that pertained to a bad conduct discharge, a forfeiture of all pay and allowances, confinement at hard labor for 7 months, and reduction to the lowest enlisted grade.  The convening authority also directed that the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review and pending completion of the appellate review, the applicant be confined the United States Disciplinary Barracks, Fort Leavenworth, Kansas, or elsewhere as competent authority may direct.

6.  The applicant’s military service records contain a copy of Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 149, dated 13 February 1974, which shows that by action of the Commandant, United States Disciplinary Barracks, the unexecuted portion of the sentence to confinement at hard labor adjudged on 11 October 1973 was suspended for 4 months and he directed, at which time, unless the suspension was sooner vacated, the unexecuted portion of the suspended sentence would be remitted without further action.  This document also shows that, the applicant having served the period of confinement, as modified, the applicant was restored to duty pending completion of appellate review.  In addition, this document shows that portion of the sentence adjudging forfeitures did not apply to pay becoming due the applicant during the period commencing on the date of the order, and terminating on the date of the order directing execution of the sentence.

7.  The applicant’s military service records contain a copy of JAAJ Form 18b (United States Army Court of Military Review, Nassif Building, Falls Church, Virginia), Appellate Military Judges Decision, dated 15 May 1974, which shows that before three Appellate Military Judges, in Court-Martial 430612, United States versus [The Applicant], the U.S. Army Court of Military Review found the findings of guilty and sentence as approved by proper authority correct in law and fact and having determined; on the basis of the entire record, that they should be approved, such findings of guilty and sentence were affirmed.

8.  The applicant’s military service records contain a copy of Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 614, dated 11 June 1974, which shows, in pertinent part, the applicant's sentence was affirmed pursuant to Article 66.  This document also shows that the provisions of Article 71(c) having been complied with, that portion of the sentence pertaining to confinement having been served and the applicant having been restored to duty pending completion of appellate review on
13 February 1974, the sentence, as modified and pertaining to the bad conduct discharge was ordered duly executed.

9.  The applicant's military service records contain a DD Form 214 (Report of Separation from Active Duty).  This document shows that the applicant was discharged on 2 July 1974 and contains the separation authority, narrative reason, separation program number (SPN), and character of service pertaining to the applicant's discharge.  This document confirms that the authority for the applicant’s separation was Army Regulation 635-200, paragraph 11-2; Headquarters, U.S. Army School/Training Center and Fort Gordon, Fort Gordon, Georgia, General Court-Martial Order Number 113, dated 7 November 1973; and Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 614, dated 11 June 1974.  Based on the authority and reason for his separation, the applicant was assigned SPN “292” and a character of service categorized as “under other than honorable conditions.”  This document also shows the applicant had 676 days lost under Title 10, United States Code, Section 972 (10 USC 972) from 11 September 1971 through 19 July 1973; 200 days lost subsequent to normal ETS from
20 July 1973 through 28 August 1973 and from 6 September 1973 through
12 February 1974; and was in an excess leave status without pay and allowances pending completion of appellate review from 13 February 1974 through 2 July 1974.  This document further shows the applicant completed
1 year net active service during this period.  The DD Form 214 confirms that the applicant was issued a Bad Conduct Discharge Certificate.

10.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

11.  Title 10 of 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.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 11 (Dishonorable and Bad Conduct Discharge), paragraph 11-2, provides the authority for the issuance of a DD Form 259A (Bad Conduct Discharge).

13.  Army Regulation 635-5-1 (Separation Program Numbers) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It identifies the SPN of “292” as the appropriate code to assign enlisted Soldiers who are separated under the provisions of Army Regulation 635-200 as a result of court-martial (other than desertion).

14.  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, 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, the character of service of his discharge should be upgraded because he was treated unjustly, served his country in combat, was diagnosed with PTSD, and he would like to receive medical treatment by the VA for his post-combat deficiencies.

2.  The evidence of record shows the applicant completed 5 months of foreign service in the Republic of Vietnam from 3 March 1971 through 17 August 1971.  The evidence of record also shows the applicant was in an AWOL status for more than 23 months from 11 September 1971 through 28 August 1973.

3.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  In addition, conviction and discharge were effected in accordance with applicable law and regulations and the applicant’s rights were protected throughout the court-martial process.  In this regard, the applicant provides insufficient evidence in support of his claim that he was treated unjustly.

4.  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.  

5.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that based on the seriousness of the offense for which he was convicted, clemency would not be appropriate in this case.

6.  The applicant is advised that the U.S. Army does not upgrade a former Soldier's discharge solely to enhance his or her eligibility for government benefits.

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

____X____  ___X_____  ___X_____  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.




       _   ___X___   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003622



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ABCMR Record of Proceedings (cont)                                         AR20080003622



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