IN THE CASE OF:
BOARD DATE: 3 September 2008
DOCKET NUMBER: AR20080012002
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 his rank be restored to Sergeant (SGT/E-5).
2. The applicant states he earned his stripes in combat in Vietnam. After returning to CONUS (Continental United States), he developed some disciplinary problems as a result of post-traumatic stress disorder (PTSD). He was AWOL (absent without leave) for 10 days and was court-martialed. His rank was taken by a few men who had no idea of what war was all about. He is now rated as 100 percent disabled by the VA (Department of Veterans Affairs).
3. The applicant provides:
a. DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
b. Self-authored letter to the Army Review Boards Agency, dated 7 February 2008.
c. Special Court-Martial Order Number 23, Headquarters, 2nd Battalion (M), 41st Infantry, 2nd Armored Division, Fort Hood, TX, dated 30 June 1967.
d. Citation awarding the Air Medal for the period 27 December 1965 to 30 November 1966.
e. Special Court-Martial Order Number 29, Headquarters, 2nd Battalion (M), 41st Infantry, 2nd Armored Division, dated 31 July 1967.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army for 3 years on 4 January 1965. Following Basic Combat Training at Fort Polk, LA from 12 January to 1 March 1965, he was transferred to Fort Bliss, TX for Advanced Individual Training (AIT). He was initially trained in military occupational specialty (MOS) 226 (Fire Control Maintenance) beginning on 13 March 1965; then in June 1965, he was trained in MOS 23P (HAWK Fire Control Mechanic). He apparently never completed this training and was returned to Fort Polk for infantry AIT, which he completed on or about 17 December 1965 and awarded MOS 11B.
3. The applicant was transferred to Vietnam where he served with Company D, 1st Battalion, 5th cavalry, 1st Cavalry Division as an assistant gunner. He served in Vietnam from on or about 28 December 1965 to on or about 17 December 1966, when he was transferred to Fort Hood, TX.
4. The applicant's records show he was promoted/reduced as follows:
PVT E-1 4 January 1965
PVT E-2 4 May 1965
PFC E-3 7 September 1965
SP4 E-4 29 July 1966
SGT E-5 18 December 1966
PVT E-1 30 June 1967.
5. The applicant's records show the following examples of indiscipline:
a. On 14 September 1965, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 4 September 1965 until on or about
14 September 1965. His punishment consisted of 14 days of restriction.
b. On 22 March 1967, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL, from on or about 18 March 1967 until on or about 22 March 1967. His punishment consisted of the forfeiture of $50.00 pay per month for 1 month.
c. Conviction by a Special Court-Martial for a violation of Article 86, UCMJ, in that he did, on or about 10 June 1967, without proper authority, absent himself from his unit until on or about 16 June 1967. His punishment consisted of confinement at hard labor for 6 months, forfeiture of $59.00 pay per month for
6 months, and to be reduced to the grade of private (E-1). On 1 August 1967, the unexecuted portion of the applicant's sentence to confinement at hard labor was suspended until 20 December 1967, at which time, unless the suspension was sooner vacated, the unexecuted port of the sentence would be remitted.
6. On 15 August 1967, the applicant's commander initiated action to administratively discharge him for unsuitability under the provisions of Army Regulation 635-212. The applicant acknowledged notification and, on 17 August 1967, he consulted with legal counsel who advised him of the basis for the contemplated administrative discharge as well as the rights available to him. He waived all rights and elected not to make a statement.
7. On 1 September 1967, the approving authority approved the applicant's discharge for unsuitability and directed he be issued a general discharge. On 29 September 1967, the applicant was discharged accordingly.
8. There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.
9. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found to be unfit or unsuitable for military service. The regulation further provided, in pertinent part, that service members discharged for unfitness would be furnished an undesirable discharge,
unless circumstances warranted a general or honorable discharge. Service members discharged for unsuitability would be furnished an honorable or general discharge.
10. Court-martial convictions stand as adjudged or modified by appeal through the judiciary 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 is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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. The applicant requests that his rank be restored to SGT/E-5.
2. The applicant lost his rank as a result of a Special Court-Martial conviction; he was reduced from SGT to PVT. Immediately thereafter, his chain of command processed him for discharge under the provisions of Army Regulation 635-212 for unsuitability; therefore, he was never able to regain the rank he had lost.
3. The applicants discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.
4. The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial. Restoration of the applicant's rank as a matter of clemency is not warranted.
5. 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.
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