IN THE CASE OF:	  

		BOARD DATE:	  30 December 2008

		DOCKET NUMBER:  AR20080015651 


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 he was treated unfairly and discriminated against and that this led to him going absent without leave (AWOL) and receipt of a BCD. 

3.  The applicant provides no additional documentation in support of his request.

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 he enlisted in the Regular Army on 1 October 1964.  He was trained as a light weapons infantryman in military occupational specialty (MOS) 11B.

3.  The applicant served in Vietnam from 5 May 1965 to 21 April 1966.

4.  The applicant was convicted by two special courts-martial of being absent from his appointed place of duty by quitting his unit with intent to avoid hazardous duty, a combat operation, on 8 October 1965; of stealing a field jacket of a value of $10.00, the property of another Soldier; of breaking restriction on 21 March 1967; and of being AWOL from 27 November 1966 to 6 February 1967.  His sentence consisted of confinement at hard labor and forfeitures of pay.

5.  The applicant was convicted by a general court-martial on 4 April 1969 of being AWOL from 2 August 1967 to 4 September 1967, from 15 September 1967 to 13 January 1969, and of escaping from lawful confinement at the Post Stockade on 15 September 1967.  His sentence consisted of confinement at hard labor for 2 years, a forfeiture of all pay and allowances, and to be dishonorably discharged. The sentence was approved on 31 July 1969.

6.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a Board of Review.  Pending completion of the review, the applicant was confined at the United States Disciplinary Barracks, Fort Leavenworth, Kansas.  

7.  On 26 September 1969, the United States Army Court of Military Review affirmed the findings and sentence.  The court approved only the dishonorable discharge, a forfeiture of all pay and allowances, and confinement for 18 months.

8.  On 15 December 1969, the applicant was discharged from the Army, pursuant to the sentence of a general court-martial.  He had completed 1 year, 11 months, and 26 days of creditable service and he had 290 days of lost time due to being AWOL and in confinement prior to his scheduled ETS and 887 days of time lost due to AWOL and confinement subsequent to his normal expiration term of service date.

9.  Item 13a (Character of Service) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the entry "Under Other Than Honorable Conditions" (UOTHC) and item 13b (Type of Certificate Issued) shows the entry "DD Form 259A" (BCD Certificate).

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1(b) of the regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge or dishonorable discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after affirmation of the sentence imposed.

11.  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.

12.  Army Regulation 635-200, paragraph 3-7a, also provides that an honorable discharge is a separation with honor.  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 inappropriate.

13.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U. S. 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.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.
Conviction and discharge were effected in accordance with applicable law and regulation.

2.  The evidence of record shows the applicant was convicted by two special courts-martial for being absent in desertion, for voiding hazardous duty, for stealing, for breaking restriction, and for being AWOL; and by a general court-martial for escaping from confinement and being AWOL.  He was discharged pursuant to the sentence of a general court-martial.  He was sentenced to a dishonorable discharge; however, his DD Form 214 shows he was issued a BCD.  

3.  The applicant has provided no evidence to show that either his dishonorable discharge or his BCD discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  Careful consideration has been given to the applicant's contention that he was treated unfairly, discriminated against and that these factors led to him going AWOL and receiving a BCD.  There is no evidence available and the applicant has provided none to show that he was treated unfairly or that discrimination played an integral part in the discharge decision or the type of discharge that he received.

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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)                                         AR20080015651



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ABCMR Record of Proceedings (cont)                                         AR20080015651



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