IN THE CASE OF:
BOARD DATE: 6 January 2009
DOCKET NUMBER: AR20080016218
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 that the evidence considered by the court-martial was insufficient and inconclusive. At the time of his trial, a scapegoat was needed and he just happened to be available. The applicant further states that he would like the Board to consider his 15 years of honorable service, his two tours in Vietnam, and his Bronze Star Medal (BSM) for Valor.
3. The applicant does not provide any additional documents 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 applicants 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 applicants 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 military records show that he enlisted in the Regular Army on 30 April 1979 with 11 years, 3 months, and 8 days of prior active service. He served as a construction engineer and water treatment/purification specialist.
3. On 12 April 1983, a special court-martial found the applicant guilty, contrary to his pleas, for being absent without leave (AWOL) from 11 to 17 December 1982, and for having in his possession on a military installation two hand-rolled partially burnt cigarettes containing marihuana. He was sentenced to reduction from pay grade E-7 to E-1 and a BCD.
4. On 28 December 1984, the United States Army Court of Military Review affirmed the court-martial's finding of guilty and sentence.
5. On 24 September 1985, the United States Court of Military Appeals denied the applicant's petition for grant of review.
6. On 23 October 1985, the applicant's court-martial sentence was ordered executed.
7. Accordingly, on 3 December 2005, the applicant was issued a BCD.
8. The applicant served two tours in Vietnam from 29 July 1968 to 26 July 1969 and again from 2 February to 29 December 1971. Amongst the applicant's awards and decorations is the BSM. However, there is no evidence that the applicant was awarded the BSM for Valor.
DISCUSSION AND CONCLUSIONS:
1. The applicant states that the evidence considered by the court-martial was insufficient and inconclusive; that at the time of his trial, a scapegoat was needed and he just happened to be available. However, he has offered no evidence to support his contentions.
2. The applicant was convicted by a special court-martial, the court-martial's findings and sentence were affirmed by the United States Army Court of Military Review, and his case was reviewed by the United States Court of Military Appeals prior to that court denying his petition for grant of review.
3. It must be presumed that the applicant's arguments were raised during his trial and during his appellate process.
4. The applicant's two tours in Vietnam and his lengthy honorable service are not sufficiently mitigating to warrant upgrading a properly issued BCD.
5. As such, there is no basis for granting the applicant's request.
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) AR20080016218
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ABCMR Record of Proceedings (cont) AR20080016218
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