IN THE CASE OF:	

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20090001284 


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, the spouse of a former service member (FSM), requests, in effect, that the FSM’s records be changed to show the character of his discharge to read honorable instead of dishonorable.

2.  The applicant states, in effect, that she was submitting this application on behalf of the FSM who served on active duty during the Vietnam era and now has been diagnosed with dementia and has diabetes.  

3.  The applicant provides a letter of explanation of the facts and circumstances as to why she has submitted this application, a copy of the FSM’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of his discharge instructions from the Mission Hospital, and a requested copy of a Power of Attorney signed by the FSM.

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 FSM’s records show he enlisted in the Regular Army on 18 November 1965 for a period of 3 years.  Upon completion of basic combat training at Fort Benning, Georgia, and advanced individual training at Fort Gordon, Georgia, the FSM was awarded the military occupational specialty (MOS) 11B, Light Weapons Infantryman.  He also completed basic airborne training.  The FSM was advanced to the grade of Private First Class on 30 May 1966.  He arrived in Vietnam on or about 3 June 1966.

3.  On 12 January 1967, the FSM was arraigned and placed on trial in Cu Chi, Republic of Vietnam.  General Court-Martial Order Number 8, published by Headquarters, 25th Infantry Division, APO San Francisco, on 1 February 1967, shows the FSM was charged with willfully disobeying his superior officer, when after having receiving a lawful command from his superior officer to go on a platoon ambush patrol at Cu Chi, Republic of Vietnam, on or about 17 December 1966, at Cu Chi Base Camp, Republic of Vietnam.  The FSM was found guilty of the charge pursuant to his plea of guilty and was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, to be reduced to the grade of E-1 and to be confined at hard labor for one year.  The sentence was adjudged on 12 January 1967.  

4.  The FSM could have received the maximum sentence based on the charge which would have been a dishonorable discharge, 5 years at hard labor, total forfeiture of pay and allowances, and reduction to E-1.  However, due to the FSM’s pleas of guilty the maximum sentence was reduced.  The pretrial agreement as a result of the guilty pleas assured that the maximum approved sentence would not exceed a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 2 years, and reduction to the lowest enlisted grade.

5.  On 1 February 1967, the record of trial was forwarded to The Judge Advocate General of the Army for review by a board of review.  Pending completion of appellate review the FSM was confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas. 

6.  On 28 April 1967, the Board of Review affirmed that the findings of guilty and sentence as approved by proper authority were correct in law and fact.

7.  On 20 June 1967, the FSM was denied restoration to duty, clemency and parole by the Secretary of the Army.

8.  General Court-Martial Order Number 622, Headquarters, Fort Leavenworth, Kansas, dated 4 August 1967, ordered the sentence executed.

9.  The FSM was ordered to be dishonorably discharged by Special Orders Number 162, dated 17 August 1967, as a result of having been convicted by a General Court Martial.  However, a letter from the Chief of the Clemency Branch, dated 3 October 1967, indicated that the FSM’s dishonorable discharge was mitigated to a bad conduct discharge.     

10.  The FSM’s initial DD Form 214, which reflected that he was dishonorably discharged from active duty on 21 August 1967, was reissued (by order of the Secretary of the Army), to reflect the character of his discharge as “Under Conditions Other Than Honorable" and the FSM was issued DD Form 259A (Bad Conduct Discharge Certificate).  He was credited with 1 year, 1 month and 
26 days of active service.  He had 220 days of lost time.  He was in confinement from 14 January 1967 through 21 August 1967.

11.  Army Regulation 635-204 (Personnel Separations – Dishonorable and Bad-Conduct Discharge), in effect at the time, set forth the basic authority for the separation of enlisted personnel as a result of court-martial.  Paragraph 1(a) of the regulation provided, in pertinent part, that an enlisted person will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial imposing dishonorable discharge.  The appellate review must be completed and the affirmed sentences ordered duty executed.

12.  Army Regulation 635-200 (Personnel Separations –Enlisted Personnel) 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.

13.  Army Regulation 635-200, 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

14.  The Military Justice Act of 1983 (Public Law 98-209) provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.  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 change a discharge due to matters which should have been raised in the appellate process, rather it is only empowered to change the severity of the sentence imposed in the court-martial process 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.  In order to justify correction of a military record, the applicant must show, 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 general court-martial was warranted by the gravity of the offenses charged, discharge proceedings were accomplished in accordance with law and regulations applicable at the time, and there is no indication of procedural errors, which would tend to jeopardize the FSM’s rights.  The discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  Evidence shows that the FSM was discharged from active duty as a result of sentence of a general court-martial.  In October 1967, Clemency Branch mitigated the FSM's dishonorable discharge to a bad conduct discharge.

4.  The evidence of record failed to establish a basis upon which further clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the FSM’s bad conduct discharge.

5.  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)                                         AR20090001284



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ABCMR Record of Proceedings (cont)                                         AR20090001284



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