IN THE CASE OF:	

		BOARD DATE:	  30 December 2008

		DOCKET NUMBER:  AR20080016236 


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 that his Bad Conduct Discharge (BCD) be upgraded.

2.  The applicant states that he was too young psychologically to adapt to active duty and his superiors in Vietnam were vindictive in keeping him in the service.

3.  The applicant explains that he enlisted when he was 17 years old.  At that time he was 5 feet 4 inches tall and weighed 130 pounds.  He believes that psychologically he was only 14 years old at that time.  When he ended up in the stockade for a relatively minor offense, he was raped by other inmates.  This led to his decision to attempt to get discharged by going absent without leave (AWOL).  However, military authorities just put him back in the stockade, which resulted in his escaping and going AWOL at any opportunity.  He then tells of how he was sent to Treasure Island after he tied up a guard and attempted to escape confinement.  He details how he was sexually propositioned by other inmates throughout his confinement and how he sought mental health treatment after his discharge for drugs and sexual problems.

4.  The applicant concludes that since completing his mental health treatment, he has been trying to be a contributing member of society.  He has been married twice and has eight boys from the two marriages, and has attempted to help raise his children to the best of his ability.



5.  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 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 military records show that he enlisted in the Regular Army on 26 September 1966 at the age of 17 (his date of birth was 17 November 1948) and was awarded the military occupational specialty of lineman.  He arrived in Vietnam on 17 March 1967.

3.  On 2 May 1967, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniformed Code of Military Justice, for failure to go at the time prescribed to his appointed place of duty.

4.  On 9 July 1967, the applicant again accepted NJP, this time for being AWOL from 7 to 9 July 1967.

5.  On 8 August 1967, the applicant accepted NJP for a third time for being AWOL on 7 August 1967.

6.  On 2 November 1967, the applicant was convicted by a special court-martial, pursuant to his pleas, of being AWOL from 8 to 20 October 1967; on 23 October 1967; from 27 to 29 October 1967; and from 29 October to 10 November 1967.  The applicant was sentenced to confinement for 6 months (3 months suspended) and to a forfeiture of $64.00 a month for 6 months.

7.  On 13 May 1968, the applicant was convicted by a general court-martial, pursuant to his pleas, of being AWOL from 24 February to 1 March 1968; from 


14 to 15 March 1968; and from 9 to 10 April 1968.  He was also convicted of escaping from lawful confinement.  The applicant was sentenced to confinement for 6 months, to a forfeiture of two-thirds of his pay, and to a BCD.  The convening authority approved the sentence except forfeiture was set at $65.00 a month.  However, on 9 August 1968 the United States Army Judiciary set aside the action of the convening authority and the record of trial was returned for a new review and action by a different staff judge advocate and convening authority.

8.  On 10 September 1968, General Court-Martial Orders Number 36 were published in which the 13 May 1968 general court-martial sentence was approved in the same manner by a different convening authority.   

9.  On 16 January 1969, the applicant was convicted by a special court-martial, pursuant to his pleas, of violating the conditions of his parole by going AWOL on 13 August 1968 and of being AWOL from 13 August to 3 December 1968.  The applicant was sentenced to six months confinement and forfeiture of $73.00 a month for 6 months.  That sentence was approved by the appropriate authority.

10.  The applicant was issued a BCD on 17 December 1969.  He had 1 year,      1 month and 4 days of creditable active service and 695 days lost time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's two primary contentions are that he was young and immature when he enlisted, and that he continued to go AWOL because he was the object of unwanted sexual attention in the stockade.

2.  In regards to the applicant's age, while he was 17 years old when he enlisted, many other soldiers enlist at the age of 17 and serve honorably.  Also, while the applicant may have been 17 at the time of his enlistment, he was only two months away from reaching age 18 and he was over 21 years old when he was discharged.  As such, youth and immaturity are not accepted as a matter of mitigation.

3.  The applicant's other contention, that he continued to go AWOL because he was the object of unwanted sexual attention in the stockade, is not accepted.  The applicant had gone AWOL on six occasions prior to being sentenced to confinement.  In addition, the applicant continued to go AWOL when he had been released from the stockade and was on parole.

4.  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)                                         AR20080016236



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ABCMR Record of Proceedings (cont)                                         AR20080016236



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