IN THE CASE OF:	   

		BOARD DATE:	        18 November 2008

		DOCKET NUMBER:  AR20080013489 


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 (BCD) be upgraded. 

2.  The applicant states, in effect, that at the time of his court-martial he was sick and did not get a fair hearing.  

3.  The applicant provides, in support of his application, a self-authored statement, separation document (DD Form 214), and 1 page of a 12 May 2008 Medical Record – Progress Notes.

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 record shows that he enlisted in the Regular Army and entered active duty on 31 January 1968 and was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  It also shows that on 27 July 1971, he was honorably discharged for the purpose of immediate reenlistment and on 28 July 1971, he reenlisted for 3 years. 

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he was promoted to specialist four (SP4)/E-4 on 26 January 1970 and that this is the highest rank he attained while serving on active duty.  Item 41 (Awards and Decorations) shows that during his active duty tenure he earned the following awards:  Bronze Star Medal (1st Oak Leaf Cluster), National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Parachutist Badge, 2 Overseas Service Bars, 1st Class Gunner Badge with the M-60 Machinegun, and Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant’s disciplinary history shows that he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following five separate occasions for the offenses indicated:  28 February 1968, for failing to obey a lawful order; 17 December 1968, for being derelict in the performance of his duties; 28 March 1969, for failing to go to at the time prescribed to his appointed place of duty; 4 August 1972, for being absent without leave (AWOL) from 28 July through 1 August 1972; and 13 September 1972, for failing to go at the time prescribed to his appointed place of duty.  

5.  On 25 January 1972, a Special Court-Martial (SPCM) found the applicant guilty of violating Article 134 of the UCMJ by wrongfully possessing heroin and marijuana.  The resultant sentence was a reduction to private (PV1)/E-1, a forfeiture of $100.00 per month for six months, and confinement at hard labor for three months.  On 27 January 1972, the sentence was approved.  However, the sentence to three months confinement was suspended for 90 days, at which time unless the suspension is sooner vacated, the suspended portion of the sentence will be remitted without further notice.

6.  On 8 May 1973, an SPCM found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from on or about 6 December 1972 until on or about 27 March 1973.  The resultant sentence was a reduction to PV1 and the performance of hard labor without confinement for 30 days.  On 15 May 1973, the sentence was approved.  However, the sentence to hard labor without 



confinement for 30 days and reduction in excess of the reduction to private first 
class (PFC)/E-3 was suspended until 8 November 1973, at which time unless the suspension is sooner vacated, the suspended portion of the sentence will be remitted without further notice.

7.  On 26 March 1974, an SPCM found the applicant guilty of violating the following Articles of the UCMJ by committing the offenses indicated:  Article 81, conspiracy, by unlawfully entering another Soldier’s room and by committing larceny of some value more than $100.00; Article 121, larceny, by stealing a television, tape deck, and radio clock of some value more than $100.00; Article 130, by unlawfully entering the room of another Soldier with intent to commit a criminal offense.  The resultant sentence was a reduction to PV1, confinement at hard labor for six months, and a BCD.  The sentence was approved on 21 May 1974.

8.  On 18 December 1974, Headquarters, United States Army Signal Center and Fort Gordon, Fort Gordon, Georgia, SPCM Order Number 14, Article 71(c) having been complied with and the sentence having been affirmed, directed that the BCD portion of the applicant’s sentence be executed.  On 20 January 1975, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was separated under the provisions of Chapter 11, Army Regulation 635-200, by reason of court-martial, and that he received a Bad Conduct Discharge Certificate.  It also shows he had a total of 6 years, 1 month, and 6 days of creditable active military service and that he accrued 333 days of time lost due to AWOL and confinement.   

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, established the policy for the separation of members with a dishonorable discharge or a BCD pursuant to an approved sentence of a general or special court-martial.  It stated that discharge would be accomplished only after the completion of the appellate process and affirmation of the court-martial findings and sentence.

10.  Title 10 of United States Code, Section 1552, as amended, does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.






DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his court-martial hearing was unjust, that he was sick, and that he did nothing wrong to deserve being discharged was carefully considered.  However, although, the applicant's Medical Record – 
Progress Notes document does show lung cancer with metastasis to the brain, this does not in and of itself show he was suffering from these conditions at the time of his discharge in 1974.  Therefore, although unfortunate, this factor is not sufficiently mitigating to support granting the requested relief. 

2.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable laws and regulation and his rights were protected throughout the court-martial process.  

3.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that his service was not sufficiently meritorious to support clemency given his extensive disciplinary history and the seriousness of the offenses for which he was convicted.  

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

___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)                                         AR20080013489



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ABCMR Record of Proceedings (cont)                                         AR20080013489



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