IN THE CASE OF:	 

		BOARD DATE:	       23 APRIL 2009

		DOCKET NUMBER:  AR20090002394 


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 a reconsideration of his earlier request for an upgrade of his bad conduct discharge. 

2.  The applicant states that by today’s standards, his discharge was inequitable and that his state of mind was not thoroughly explored before or during his offense, or at the time of his discharge. 

3.  The applicant provides a copy of a psychological report, dated 1 June 2008, in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060015949 on 21 June 2007.  The original ABCMR letter, dated 9 July 2007, informed the applicant that the decision in his case was final and that he may request reconsideration of this decision within one year if he could present new evidence or argument that was not considered by the Board.  However, the applicant believed the letter did not clearly state that a reconsideration must be submitted within one year of the original ABCMR decision (21 June 2007).  The applicant submitted a request for reconsideration on 5 July 2008, which was within one year of the ABCMR letter (9 July 2007).  Based on the above confusion, as an exception to policy, the ABCMR will reconsider the applicant's new evidence and/or arguments. 
2.  The applicant submitted a copy of a psychological report, dated 1 June 2008, which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's records show that he enlisted in the Regular Army for a period of 3 years on 15 May 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewmember).  He also completed the Basic Airborne Course.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

4.  The applicant’s records further show he arrived in the Republic of Vietnam on or about 21 December 1968.  He was initially assigned to Troop A, 2nd Squadron, 17th Cavalry.  He was wounded on 30 January 1969 and was subsequently reassigned to Troop D, 2nd Squadron, 17th Cavalry.

5.  On 4 September 1969, the applicant pled guilty at a General Court-Martial to one specification of causing a false alarm at Camp Eagle in the Republic of Vietnam and in the presence of the enemy by needlessly and without authority detonating a fragmentation grenade on or about 28 July 1969 and one specification of committing an assault upon his platoon sergeant at Camp Eagle in the Republic of Vietnam by detonating a dangerous weapon in the close proximity to his living quarters on or about 28 July 1969.  The Court sentenced him to a dishonorable discharge, a forfeiture of all pay and allowances, a reduction to private (PV1)/E-1, and confinement at hard labor for 4 years.  The sentence was adjudged on 4 September 1969.

6.  On 27 December 1969, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, confinement at hard labor for 2 years, total forfeiture of pay and allowances, and reduction to the lowest enlisted grade.  He also ordered the record of trial forwarded to The Judge Advocate General of the Army for appellate review and ordered the applicant confined.

7.  On 13 July 1970, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  However, the Court modified the applicant’s sentence to confinement at hard labor for 18 months, reduction to PV1/E-1, forfeiture of pay and allowances, and a bad conduct discharge.  




8.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 951, dated 7 October 1970, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

9.  The applicant was discharged from the Army on 19 October 1970.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged in accordance with chapter 3 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a character of service of under conditions other than honorable.  This form further confirms the applicant completed 1 year, 2 months, and 28 days of creditable active service and had a total of 432 days of lost time due to confinement. 

10.  The applicant submitted a copy of a psychological evaluation report, dated 1 June 2008, that shows he is diagnosed with Post Traumatic Stress Disorder (PTSD) related to his traumatic combat experience. 

11.  Court-Martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of 
Military Records 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.

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

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 the Soldier’s separation specifically allows such characterization.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant's current diagnosis of PTSD, related to his traumatic combat experience, is noted.  However, it is not sufficiently mitigating to grant him the requested relief. 

3.  The applicant was convicted by a General Court-Martial, which was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a Court-Martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

4.  The applicant was given a dishonorable discharge pursuant to an approved sentence of a General Court-Martial.  The appellate review was completed and the affirmed modified sentence, including a bad conduct discharge, ordered duly executed.  There is no evidence of record, and the applicant provided no evidence, to show that the issue of his ability to distinguish right from wrong and to adhere to the right was or should have been raised during the trial or the appellate action.  All requirements of law and regulation were met and the rights of the applicant were fully protected.  The seriousness of the offenses committed by the applicant effectively sets the bar higher for him to achieve clemency from the ABCMR.  

5.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20060015949, dated 21 June 2007.



      _______ _   XXX_______   ___
               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)                                         AR20090002394



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ABCMR Record of Proceedings (cont)                                         AR20090002394



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