IN THE CASE OF:	

		BOARD DATE:	 10 March 2009 

		DOCKET NUMBER:  AR20080018212 


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 to a general or an honorable discharge.

2.  The applicant states that he was 17 years old and too young to cope with the realities of military service and the experiences of war.  Other than going absent without leave (AWOL), he was never in any trouble while he was in the Army, and he has not been in any trouble since leaving the Army.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 5 August 1964 at age 17, completed basic combat and advanced individual training, was awarded military occupational specialty (MOS) 67B (O-1/U-6 Airplane Repairman), and was advanced to pay grade E-4.

3.  He served in Vietnam as a crew chief from 3 July 1965 to 10 July 1966.

4.  On 9 January 1968, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being AWOL from 7 December 1967 to 5 January 1968.  The resultant punishment is not contained in the available records.

5.  The applicant was convicted by a summary court-martial on 7 July 1966 for being AWOL from 16 to 26 June 1966.  He was sentenced to reduction to private (PV1)/E-1; forfeiture of $62.00 per month for 1 month; and confinement at hard labor for 30 days (suspended for 3 months).

6.  The applicant was convicted by a special court-martial on 17 April 1967 for being AWOL from 17 October to 5 November 1966; from 14 November to 12 December 1966; from 2 to 10 February 1967; and from 5 to 7 March 1967.  He was sentenced to forfeiture of $60.00 per month for 6 months and confinement at hard labor for 6 months (suspended for 6 months).

7.  The applicant was convicted by a second special court-martial on 20 July 1967 for being AWOL from 29 April to 23 June 1967.  He was sentenced to forfeiture of $85.00 per month for 6 months, and confinement at lard labor for
6 months.

8.  On 12 February 1969, the applicant was convicted by a general court-martial for being AWOL from 17 April to 17 May 1968 and from 9 June to 27 December 1968.  The court sentenced the applicant to a dishonorable discharge, a forfeiture of $100.00 per month for 12 months, and confinement at hard labor for 1 year.

9.  On 20 February 1969, a legal review was submitted on the applicant's general court-martial record of trial.  In that review it was stated that the applicant had been diagnosed as having an immature personality, chronic, moderate, manifested by poor impulse control with escape-type behavior (frequent AWOL) and inability to respond to disciplinary action directed at controlling this impulsive behavior.  The applicant's assignment as a helicopter crew chief was also noted, 

but no mention was made of the applicant serving in combat while a crew chief.  The Staff Judge Advocate who wrote the legal review recommended the sentence be approved.

10.  On 23 April 1969, the United States Army Judiciary assumed prejudice in that the court assessed the sentence to meet the needs of local conditions rather than affording the applicant individualized consideration on punishment and only affirmed a BCD, a forfeiture of $75.00 a month for 12 months, and confinement for 1 year.

11.  On 9 June 1969 the affirmed portion of the general court-martial sentence was ordered executed.

12.  Accordingly, on 30 June 1969 the applicant was issued a BCD.  He had 2 years, 10 months, and 10 days of creditable active service.  The applicant was almost 22 years old at that time.

13.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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.

15.  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 ABCMR 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.  The applicant claims that his youth and combat experiences led him to going AWOL on several occasions, and points out that he never committed any other offense other than going AWOL.

2.  The applicant is correct in that he was never convicted of any offense other than AWOL.  However, AWOL is a serious offense and the applicant was either given NJP for, or convicted of, being AWOL on 10 occasions.  Such repeat misconduct was addressed by the applicant's command with progressive punishment until that punishment culminated in a BCD.  As such, this argument is not accepted as a reason to upgrade a properly issued discharge.

3.  As for the applicant's youth, while it is true that the applicant was 17 years old when he enlisted, he was almost 22 years old when he was discharged.  While youth may have been a viable contention for an offense committed while a Soldier is 17 years old, it is not for repeated offenses and offenses committed as the Soldier grows older and gains more experience.

4.  While the applicant was a crew chief on a helicopter in Vietnam, there is no evidence to show that the applicant served in combat.  There is no evidence of record and the applicant provides none to show that his combat experiences led him to going AWOL.  In addition, this was an issue that should have been brought up at his court-martial as a mitigating factor.  

5.  In view of the foregoing, there is no basis to grant 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)                                         AR20080018212



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ABCMR Record of Proceedings (cont)                                         AR20080018212



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