IN THE CASE OF:	  

		BOARD DATE:	  	  11 December 2008

		DOCKET NUMBER:  AR20080015026 


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) discharge be upgraded to a general or an honorable discharge. 

2.  The applicant states, in effect, that at the time he went absent without leave (AWOL), he was having a great deal of personal conflicts as well as questioning the war.  He states he was immature and could not cope.  In an attempt to cope with his situation he used drugs and alcohol.  He adds that he had already served 3 years and 4 months of prior service that resulted in an honorable discharge.  He respectfully requests an upgrade of his discharge based on the entirety of his service.  He finally states that he is attempting to obtain Department of Veterans Affairs (VA) health care for injuries he received while on active duty and the VA requires an upgrade of his discharge. 

3.  The applicant provides no additional documents in support of his case.

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 available record shows that he enlisted in the Regular Army on 11 June 1968 with 3 years, 4 months, and 2 days of prior military service.  His military occupational specialty (MOS) was 12A (Pioneer) and the highest rank he attained while serving on active duty was pay grade E-4. 

3.  Between June 1968 and February 1969, the applicant received four nonjudicial punishments (NJP's) for two incidents of leaving his appointed place of duty without proper authority for drinking alcohol beverages in the barracks, and for failure to go at the prescribed time to his appointed place of duty.  His punishments included forfeitures, restrictions, extra duties, and a reduction to pay grade E-2.

4.  On 28 July 1969, while assigned to a unit in Vietnam, the applicant was convicted by a Special Court-Martial (SPCM) of one specification of assaulting Sergeant P_____, his superior noncommissioned officer (NCO) by locking and loading his M-16 rifle and stating, "I'm going to kill the Captain and when I'm through I'm coming after you"; of one specification of willfully disobeying a lawful order by having a round in the chamber of his weapon; and of one specification of leaving his post before he was regularly relieved, after having been posted as a sentinel at a bunker in an area subject to hostile file.  He was sentenced to confinement at hard labor for 6 months; a reduction to private (PV1), pay grade E-1; and a forfeiture of $82.00 pay per month for 6 months.

5.  On 3 September 1970 the applicant received NJP for being AWOL from
28 August through 2 September 1970.  His imposed punishment was a forfeiture of $50.00 pay for one month. 

6.  On 11 April 1971 the applicant was convicted by an SPCM of one specification of wrongfully communicating to First Lieutenant B___ a threat to injure First Lieutenant B___ by saying "Before I leave here, I'm going to frag Lieutenant M_______, and you, and Sergeant S____, if you are here, I will get your black a__ E-7 too."  The SPCM order is incomplete; therefore, the resulting sentence is not available.


7.  On 23 November 1971 the applicant was convicted by a SPCM of wrongfully communicating to Sergeant R_____, a threat to injure him by stating, "I'll get you. Don't turn your back."  The applicant was sentenced to be discharged from the 
service with a BCD, confinement at hard labor for 60 days, a forfeiture of $50.00 pay per month for 3 months, and reduction to the grade of PV1/E-1.  The sentence approved and forwarded for appellate review.   

8.  On 3 March 1974 a Report of Medical Examination found the applicant qualified for separation.  His medical record does not reflect any treatment for alcohol or substance abuse. 

9.  On 27 March 1974, the applicant was discharged with a BCD after completing a total of 6 years, 3 months, and 25 days of creditable active military service with a total of 1,028 days of time lost due to periods of AWOL and confinement.  He was awarded the National Defense Service Medal, the Parachutist Badge, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), three Overseas Service Bars, and the Expert Marksmanship Qualification Badge with Rifle Bar.   

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 (Dishonorable and Bad Conduct Discharge), paragraph 11-2, provides the authority for the issuance of a DD Form 259A (Bad Conduct Discharge Certificate).  It stipulates, in pertinent part, that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.  

11.  Title 10, U.S. 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.

12.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.   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.

13.  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 were carefully considered and found to be without merit.  

2.  The applicant's contention that his discharge should be upgraded because he was young and immature was carefully considered and found to be insufficient evidence in supporting his request.  The applicant’s record shows that he was 
27 years of age at the time of the last offense.  There is no evidence indicating that he was any less mature than any other Soldier of the same age who successfully completed military service.  

3.  The evidence of record confirms that he served in the Army for over 6 years, in which 3 years, 4 months, and 2 days was served honorably.  There is no evidence nor has the applicant submitted any evidence which shows he had personal conflict or had questions about the war in Vietnam.  There is also no evidence in his military record that shows he had drugs and/or alcohol-related problems and the applicant did not provide any evidence to support his claims.    

4.  The ABCMR does not upgrade a former Soldier's discharge solely to enhance his or her eligibility for government benefits.  Every case is considered based on its own merits when an applicant requests a change in his or her discharge.  

5.  A thorough and comprehensive review of the applicant’s military service record was conducted.  However, based on the seriousness of the offenses for which he was convicted, clemency would not be appropriate in this case.  

6.  The evidence of record reveals no error or injustice related to the applicant’s courts-martial and/or his subsequent discharge.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ, 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.

7.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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)                                         AR20080015026



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ABCMR Record of Proceedings (cont)                                         AR20080015026



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