IN THE CASE OF:	  

		BOARD DATE:	        24 JULY 2008

		DOCKET NUMBER:  AR20080007578 


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 that the bad conduct discharge (BCD) of her husband, a former service member (FSM) be upgraded to a general or honorable discharge.

2.  The applicant states that the FSM served our nation in combat in Vietnam and experienced the rigors of combat on a daily basis and was awarded the Combat Infantryman Badge (CIB) for his dedicated service.  She goes on to state that he committed his infraction while under extreme duress while serving out in the field and he realized after his wrongdoing, the gravity of his acts and he worked to change his life.

3.  The applicant provides a copy of the FSM’s DD Form 214, a self-authored statement from the applicant, a letter from the FSM’s sisters, a letter from a local police officer, a letter from a pastor, a copy of her marriage license and a copy of the FSM’s death certificate. 

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 FSM was born on 24 August 1948 and enlisted in the Regular Army in Newark, New Jersey on 25 September 1968, for a period of 2 years.  He was married with two dependents at the time.  He completed his basic combat training at Fort Dix, New Jersey and was transferred to Fort Polk, Louisiana to complete his advanced individual training (AIT).

3.  On 24 January 1969, nonjudicial punishment was imposed against the FSM for being absent without leave (AWOL) from 20 January to 22 January 1969.  His punishment consisted of a forfeiture of pay and restriction.  

4.  On 24 March 1969, he was transferred to Vietnam and was assigned to Company A, 1st Battalion, 505th Infantry Regiment, 82nd Airborne Division for duty as a light weapons infantryman.  He was advanced to the pay grade of E-3 on 5 April 1969 and was awarded the CIB on 14 May 1969.    

5.  The FSM was granted an emergency leave from Vietnam due to marital problems and was scheduled to return on 9 June 1969.  He failed to return to his unit and was reported as AWOL effective 9 June 1969.  He was dropped from the rolls of the Army as a deserter on 31 October 1969.  

6.  On 12 March 1972, the FSM was apprehended by civil authorities on a civil charge in Lakewood, New Jersey.  He was indicted by a grand jury on the charges of assault and battery and carrying a concealed weapon (firearm).  The results of that indictment are not present in the available records. 

7.  On 17 July 1973, the FSM surrendered to military authorities at Fort Dix, New Jersey, where charges were preferred against him for the AWOL charge.  The maximum penalty for his offense was a Dishonorable Discharge, 1 year of confinement, total forfeiture of pay and allowances and reduction to the pay grade of E-1. 

8.  On 10 September 1973, he was convicted pursuant to his plea by a general court-martial of being AWOL from on or about 18 June 1969 to 17 July 1973.  He was sentenced to confinement at hard labor for 7 months, reduction to the pay grade of E-1 and a BCD.

9.  The evidence of record shows that prior to sentencing, letters were dispatched to the convening authority from an attorney, from his father, from his father’s physician and from his fiancée, all requesting that the convening authority grant the FSM leniency and set aside the portion of the sentence pertaining to confinement for 7 months because the FSM was needed at home to care for his disabled father.  The letter from the attorney indicated that the FSM left the Army because of a pending divorce, his drug addition (heroin), his seriously ill parents and personal psychiatric problems.

10.  The FSM was transferred to the United States Disciplinary Barracks at Fort Leavenworth, Kansas to serve his confinement.

11.  On 18 October 1973, the United States Army Court of Military Review (USACMR) having 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 the findings of guilty and only so much of the sentence as provides for a BCD, forfeiture of all pay and allowances, confinement at hard labor for 3 months and reduction to private E-1 should be approved.  The USACMR affirmed the modified sentence on that date.

12.  On 20 November 1973, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 9 months, and 24 days of total active service, of which 2 months and 12 days were spent in Vietnam. He had approximately 1574 days of lost time due to AWOL and confinement.

13.  A review of the FSM’s official records fails to show that he ever attempted to request assistance of his chain of command or that he requested either a hardship discharge or compassionate reassignment.

14.  Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.       
 
DISCUSSION AND CONCLUSIONS:

1.  Trial by 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 FSM was convicted.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions and supporting documents have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of the FSM’s offense, the extensive length of his absence and the relative short period of his actual service.   

4.  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

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080007578





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ABCMR Record of Proceedings (cont)                                         AR20080007578



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