IN THE CASE OF:	  

		BOARD DATE:	  15 January 2009

		DOCKET NUMBER:  AR20080016230 


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 be upgraded to a general discharge.

2.  The applicant states, in effect, that he was charged with unauthorized absence after Vietnam.  He was sent home because of the death of his father.  He started drinking after his father's death and suffered from post traumatic stress disorder (PTSD).

3.  In support of his request, the applicant submits a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a letter addressed to "Whom it May Concern" which was authored by the applicant's minister.

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 was inducted into the Army of the United States on 15 January 1968.  He completed his basic combat and advanced individual training and was awarded the military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant volunteered for and successfully completed Basic Airborne Training and was awarded the Parachutist Badge on 14 June 1968.

4.  The applicant was assigned to Vietnam and served there from 25 August 1968 until 4 December 1968.  Documentary evidence showing the reason for his early return from Vietnam is not available in his service personnel record.  The evidence does show that he was returned from Vietnam and was assigned to the ceremonial platoon at Headquarters and Headquarters Company, U.S. Army Garrison, Fort Hamilton, New York.

5.  The evidence shows that on 4 February 1969 the applicant was reported absent without leave from his unit.  He was dropped from the rolls of his organization on 4 March 1969.

6.  The applicant's records document the highest rank and pay grade he held on active duty was private first class, E-3.  The record shows he achieved this rank and pay grade on 15 May 1968.  The record contains no documented acts of valor, achievement, or service warranting special recognition.

7.  The applicant returned to military control on 1 February 1971.  There is no evidence or an indication in the applicant's service personnel record that his absence was a result of the intemperate use of alcohol or that it was related to his father's death.

8.  On 6 April 1971, the applicant was tried and found guilty pursuant to his pleas by a special court-martial of wrongfully absenting himself without leave on or about 4 February 1969 and remaining so absent until on or about 1 February 1971.  The applicant was sentenced to be confined at hard labor for 5 months and to be discharged from the service with a bad conduct discharge.  The sentence was approved on 22 July 1971 and the record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

9.  All documentary evidence pertinent to review of the applicant's court-martial and bad conduct discharge is not available in his service personnel record; however, OSA Form 172 (Army Council of Review Boards - Case Report & Directive), Part IV (Pre-Hearing Review), in paragraph 2, shows that the U.S. Army Court of Military Review affirmed the findings of guilty and sentence on 19 February 1972.  The sentence to a bad conduct discharge and confinement at hard labor having been affirmed pursuant to Article 66 and the provisions of Article 71(c) having been complied with, the sentence was duly ordered executed on 5 April 1972.

10.  On 28 June 1972, the applicant was discharged from the Army with a bad conduct discharge in the rank and pay grade of private, E-1, pursuant to the sentence of a special court-martial.  He had completed 1 year and 20 days of active Federal service with 1,239 days of time lost due to absence without leave and confinement.

11.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 16 April 1982, and on 23 June 1983 he was notified that after careful consideration of his military records and all other available evidence, the ADRB had determined that he had been properly discharged.  The applicant's request for an upgrade of his discharge was denied.

12.  Army Regulation 635-200 (Enlisted Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  This regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence had been duly ordered executed.

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 separation specifically allows such characterization.

14.  Title 10, U.S. Code, section 1552, as amended, does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.

15.  In the letter addressed "To Whom it May Concern," the applicant's minister states he has known the applicant for 3 years as "pastor and as friend."  The minister states that the applicant has been through a "detox" program and has been "dry/clean" for over 4 months as of the date the letter was written, 29 July 2008.  The applicant, the pastor stated, was getting back on track and deserves the support of the community to be successful.  The pastor described the applicant as courteous, friendly, and very helpful to everybody and deserving of honor, respect, and cooperation due to his service to his country.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The evidence of record shows the applicant received a special court-martial for an extensive absence without leave that extended from 4 February 1969 through 31 January 1971.  The applicant returned to military control on 1 February 1971.

3.  The applicant was convicted for his extensive absence without leave and he was sentenced to a bad conduct discharge.  The evidence shows his conviction and discharge were effected in accordance with applicable law and regulation.

4.  The applicant’s sentence, which was adjudged on 22 July 1971, was reviewed by a Court of Military Review.  Having been finally affirmed and Article 71(c) having been complied with, the bad conduct discharge was ordered executed and the applicant was so discharged.

5.  The applicant applied to the ADRB for an upgrade of his bad conduct discharge and after careful consideration of his military records and all other available evidence, the ADRB determined that he had been properly discharged.  The applicant's request for an upgrade of his discharge was denied.

6.  While the pastor's report about the applicant's progress to get back on track is commendable, the applicant provided no evidence to show that his discharge was unjust and he also did not provide evidence sufficient to mitigate the character of his discharge.

7.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of his bad conduct discharge to a general under honorable conditions discharge.

8.  In view of the foregoing, 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)                                         AR20080016230



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ABCMR Record of Proceedings (cont)                                         AR20080016230



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