IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20080005287 


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 his bad conduct discharge (BCD) to general, under honorable conditions. 

2.  The applicant states, in effect, that he believes his BCD should be upgraded to general, under honorable conditions, based on his first enlistment.  He also states that he was not given the proper legal advice and he was also young and naïve.  He has since been a good law abiding citizen.

3.  In support of his application, the applicant provides a copy of his 15 January 1969 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provided no additional documentation in support of the applicant's 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 military records show he enlisted in the Regular Army, in pay grade E-1, on 10 August 1964, for 3 years.  On the date of his enlistment in the Regular Army, the applicant was 17 years and 4 months of age.  He completed basic and advanced training and was awarded military occupational specialty 94B, Cook.  He served in Vietnam from 15 October 1965 to 12 October 1966.  He was promoted to pay grade E-5 on 31 December 1966. 

3.  The applicant was honorably discharged for immediate reenlistment on 26 January 1967 and was issued a DD Form 214.  He reenlisted on 27 January 1967, for 4 years.  On the date of his reenlistment, the applicant was 19 years and 9 months of age.  

4.  On 1 July 1967, the applicant was convicted pursuant to his pleas by a special court-martial of one specification of absenting himself from his organization from 5 March to 24 June 1967.  The applicant was sentenced to sixty days restriction, a forfeiture of $75.00 pay per month or four months and a reduction to pay grade 
E-4.  The sentence was adjudged on 21 July and approved on 26 July 1967. 

5.  On 19 August 1967, the applicant was reported absent without leave (AWOL) and dropped from the rolls of his unit on 20 September 1967.  He was returned to military control on 22 August 1968.

6.  On 24 October 1968, the applicant was convicted pursuant to his pleas by a general court-martial of one specification of AWOL from 13 August 1967 to 22 August 1968.  The applicant was sentenced to reduction to pay grade E-1, confinement at hard labor for six months, and to be discharged from the Army with a BCD.  The sentence was adjudged on 24 October and approved on 14 November 1968.  

7.  On 14 November 1968, the Staff Judge Advocate submitted a written review, wherein he stated that prior to the post-trial interview, the applicant was advised of his rights and of the nature and purpose of the post-trial interview.  The applicant waived his rights and stated that he did not desire restoration to duty as he thought he had messed-up his Army career.  The applicant also stated that as long as he had his family and problems, he would most likely be back in court and might get a dishonorable discharge the next time.  The Staff Judge Advocate recommended the finding of guilty be approved and found the sentence correct in law.  He stated that prior to trial, the convening authority and the applicant entered into a pre-trial agreement whereby in exchange for a plea of guilty to the Charge and Specification, the convening authority agreed not to approve a sentence in excess of a BCD, reduction to the lowest enlisted grade, total forfeitures of all pay and allowances, and confinement at hard labor for nine months.  

8.  The Staff Judge Advocate opined that considering the applicant's prolonged absence, clemency was not considered appropriate.  He recommended the sentence be approved.  The record of trial was forwarded to The Judge Advocate General of the Army for review.

9.  On 30 December 1968, Department of the Army, Headquarters Fort Riley, Fort Riley, Kansas, approved and affirmed the applicant's findings of guilty, remitted the unexecuted portion of the sentence pertaining to confinement at hard labor only, and affirmed the sentence.  This action shows that all required post-trial and appellate reviews were conducted and the findings and sentence were affirmed.

10.  The applicant was discharged on 15 January 1969, in pay grade E-1, under the provisions of Army Regulation 635-204.  He was credited with 2 years, 5 months, and 17 days total active service, for his current period of service.

11.  Army Regulation 635-204, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 1(a) of the regulation provided, in pertinent part, that an enlisted person would receive a BCD pursuant only to an approved sentence of a court-martial imposing a BCD.  The appellate review must be completed and the affirmed sentence ordered duly executed.

12.  Army Regulation 635-200, chapter 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 that since he was not given the proper legal advice and was young and naïve, his discharge should be upgraded.  The applicant has submitted neither supportive evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.  

2.  The applicant made a knowing and intelligent decision to plead guilty at his general court-martial.  He entered into a pre-trial agreement with the convening authority for an approved sentence not in excess of a BCD, reduction to the lowest enlisted grade, total forfeitures of all pay and allowances, confinement at hard labor for nine months.  The applicant had an opportunity to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.   During his post-trial interview, the applicant waived his rights and stated that he did not desire to be restored to duty due to his family and problems.

3.  The evidence shows the applicant was 17 years and 4 months of age when he enlisted and served until 26 January 1967, without incident.  He was 19 years and 3 months of age when he reenlisted and was 20 years old, when he went AWOL.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  

4.  Trial by court-martial was warranted by the gravity of his lengthy AWOL.  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.  

5.  The applicant's available military records and documentation submitted with his application do not provide a sufficient basis for the Board to upgrade his discharge as a matter of equity or fairness.  The applicant's desire to have his discharge upgraded is acknowledged; however, the Board does not change the type of discharge an individual receives based on having received an honorable discharge from a first enlistment.

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080005287



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ABCMR Record of Proceedings (cont)                                         AR20080005287


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