IN THE CASE OF:	  

		BOARD DATE:	        10 February 2009

		DOCKET NUMBER:  AR20080013165 


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 bad conduct discharge (BCD) be upgraded.

2.  The applicant states, in effect, that he was falsely accused of something that he did not do.  He is having issues trying to establish his service connected disabilities in order to receive medical treatment.  He states he served honorably from 5 June 1963 through 5 July 1969 and that he served consecutively for 7 years as a good Soldier.  During this period, he received the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the Expert Marksmanship Qualification Badge with Rifle Bar.  He reenlisted for a third tour and was sent to Vietnam from 5 August 1970 through 24 September 1971 and was awarded the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device 1960, and two Overseas Service Bars during this period.  The applicant states that he worked long and hard in Vietnam and risked his life to save others.  After arriving in Fort Lewis, Washington, his company commander ordered him to report to the drug testing facility on a Saturday morning before Labor Day in September 1971.  The facility was closed and he informed the appropriate personnel.  He alleges that he never sold drugs in his life and he would not do anything to jeopardize his career as a Soldier.  

3.  The applicant provides a copy of his general court-martial; three separation documents for the periods ending on 11 December 1972, 1 September 1967, and 3 September 1964; and a letter from the Department of the Veterans Affairs 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 into the Army of the United States on 5 June 1963.  He completed training as a petroleum storage specialist and served in Germany from October 1964 through November 1966.  He was honorably discharged on 3 September 1964 for immediate reenlistment.  

3.  The applicant reenlisted on 4 September 1964 and was honorably released from active duty on 1 September 1967.  The applicant enlisted on 30 June 1969 for a period of 3 years.  He served in Vietnam from 5 August 1970 through 15 August 1971.  His highest grade attained was specialist five, E-5.  

4.  On 1 October 1971, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 24 September 1971 to 
28 September 1971.  His punishment consisted of a forfeiture of pay.

5.  On 22 May 1972, contrary to his pleas, the applicant was convicted by a general court-martial of two specifications of selling marijuana and two specifications of possessing marijuana.  He was sentenced to be discharged with a BCD, to be confined at hard labor for 12 months, to forfeit $150 pay per month for 12 months, and to be reduced to E-1.  On 29 June 1972, the convening authority approved the sentence.

6.  On 30 August 1972, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  On 17 November 1972, the U.S. Court of Military Appeals denied the petition for a grant of review.  The BCD was ordered to be executed on 22 November 1972.  

7.  Accordingly, the applicant was discharged with a BCD on 11 December 1972 under the provisions of Army Regulation 635-200, paragraph 11, as a result of a court-martial.  He had served 8 years, 9 months, and 3 days of total active service with 257 days of lost time due to being AWOL and in confinement.  

8.  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.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.  

10.  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's contentions concerning the upgrade of his discharge relate to evidentiary and procedural matters that should have been adjudicated in the court-martial appellate process and furnish no basis for recharacterization of the discharge.  

2.  The applicant’s record of service during his last enlistment included one nonjudicial punishment, one general court-martial conviction, and 257 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 an honorable discharge or a general 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)                                         AR20080013165



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ABCMR Record of Proceedings (cont)                                         AR20080013165



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