IN THE CASE OF:	  

		BOARD DATE:	        24 FEBRUARY 2009

		DOCKET NUMBER:  AR20080012160 


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, that his bad conduct discharge be upgraded. 

2.  The applicant states that clemency was given to other military personnel who took refuge in Canada and he feels that he should be given the same.

3.  The applicant provides no documentary evidence in support of his application.

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 was inducted on 23 February 1968.  He successfully completed basic combat training, advanced individual training, and basic airborne training.  He was awarded military occupational specialty 11B (light weapons infantryman). 

3.  On 21 November 1968, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 18 November 1968 to 
19 November 1968.  His punishment consisted of a reduction to E-2, restriction, and extra duty.

4.  On 14 January 1969, in accordance with his plea, the applicant was convicted by a summary court-martial of being AWOL from 25 December 1968 to 
7 January 1969.  He was sentenced to be reduced to E-1, to forfeit $65, to be restricted to the limits of the company area and place of duty for 25 days, and to be confined without hard labor for 25 days.  On 14 January 1969, the convening authority approved the sentence.  On 27 January 1969, so much of the approved sentence as was in excess of reduction to E-1, forfeiture of $65, and hard labor without confinement for 25 days was set aside.  All rights, privileges, and property of which the applicant was deprived were restored.  

5.  On 21 March 1969, in accordance with his plea, the applicant was convicted by a summary court-martial of being AWOL from 11 March 1969 to 17 March 1969.  He was sentenced to be confined at hard labor for 30 days.  On 21 March 1969, the convening authority approved the sentence.  

6.  On 10 July 1970, in accordance with his pleas, the applicant was convicted by a special court-martial of four specifications of being AWOL (from 23 June 1969 to 22 July 1969, 22 July 1969 to 23 October 1969, 23 October 1969 to 1 April 1970, and 1 April 1970 to 20 April 1970).  He was sentenced to be reduced to E-1, to forfeit $80 pay per month for 4 months, to be confined at hard labor for 
4 months, and to be discharged from the service with a bad conduct discharge.  On 11 August 1970, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 3 months, forfeiture of $80 pay per month for 3 months, and reduction to E-1.

7.  On 22 September 1970, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  

8.  On 29 September 1970, the convening authority ordered the bad conduct discharge to be executed.

9.  Accordingly, the applicant was discharged with a bad conduct discharge on 
3 February 1971 under the provisions of Army Regulation 635-200, as a result of court-martial.  He had served a total of 2 years and 17 days of creditable active service with 324 days of lost time due to AWOL and confinement.  

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

11.  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 (emphasis added), or is otherwise 
so meritorious that any other characterization would be clearly inappropriate.  

12.  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.

13.  Court-martial convictions stand as adjudged or modified by appeal through the judicial 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 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.  

14.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973.  It identified three categories of persons and permitted them to apply for clemency discharge.  Those categories were:

	1) civilian fugitives who were draft evaders
	2) members of the military who were still AWOL, and
	3) former military members who had been discharged for
	  desertion, AWOL or missing movement.

Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial.  For those who elected to earn a clemency discharge, (AWOL’s and discharged members) they could be required to perform up to 24 months alternate service.  Upon successful completion a clemency discharge would be issued.  (NOTE: In any event, the clemency discharge did not entitle him to any Department of Veterans Affairs (DVA) benefits.)

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that clemency was given to other military personnel who took refuge in Canada and he feels that he should be given the same was considered.  However, Presidential Proclamation 4313 provided for the issuance of a clemency discharge to certain former Soldiers who voluntarily entered into and completed an alternate public work program.  

2.  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 applicant was convicted.

3.  The applicant's record of service included one nonjudicial punishment, two summary court-martial convictions, one special court-martial conviction, and 324 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

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.




      _______ _   _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)                                         AR20080012160





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ABCMR Record of Proceedings (cont)                                         AR20080012160



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