IN THE CASE OF:	  

		BOARD DATE:	      28  July 2009

		DOCKET NUMBER:  AR20090003602 


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 be upgraded to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that his court-martial was his attorney’s first case, and the real truth about his military service and what caused him to go absent without leave (AWOL) were never mentioned by his attorney.

   a.  The applicant states he grew up in a sheltered environment and he wanted to go into the ministry when he graduated from high school but, with the draft he decided to get his military service obligation out of the way.  He adds he enlisted in the Army in June 1963, completed his training, and was stationed overseas in Korea.  He also states he reenlisted because a war was brewing that he believed was honorable and he wanted to serve his Nation. 

	b.  The applicant states he saw civilians killed, raped, and hurt by drunken Soldiers; local property was destroyed; and nothing was done about any of this by military leaders.  He also states these things were not part of his up-bringing and he could not justify these actions; however, he just stood by and watched them happen.

   c.  The applicant states he was reassigned to Fort Hood, Texas; memories from his military experience began to surface; and he became disheartened about his country’s role as a crusader for the world.  He states he realized his 


personal calling for the ministry conflicted with his role of fighting for greedy 
politicians who did not mind sacrificing human life to achieve their agenda.  He adds he was very conflicted, so he went to his commanding officer and told him, "I quit!"  The applicant states he was given an order to report back to his barracks, he left for a week or so, and was put in the stockade when he returned.  He also states that he repeated this scenario several times, each time telling his commanding officer, "I quit!"

   d.  The applicant states the last time he was in the stockade he was beaten twice while in solitary confinement, his meals and accommodations were very sparse, and he was not allowed to communicate with anyone. 

	e.  The applicant adds that he cared for his father during the last few months of his life and also talked with him about his father's military service during World War II.  He states he then began having dreams, talking in his sleep, and waking up and screaming.  He adds he has been diagnosed with post traumatic stress disorder (PTSD) and now draws disability.

3.  The applicant provides, in support of his application, two one-page, 
self-authored statements, dated 20 February 2009 and 8 July 2009.

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 enlisted and entered active duty in the Regular Army (RA) for a period of 3 years on 4 June 1963.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 111 (Light Weapons Infantryman).  The applicant served in the U.S. Army, Pacific in the Republic of Korea from 23 November 1963 to 27 November 1964, when he departed en route to Fort Hood, TX.  He reenlisted in the RA for a period of 6 years on 19 September 1964.

3.  On 9 June 1965, the applicant was tried by a special court-martial.  He pled guilty to the charge and specification of being AWOL from on or about 25 April to on or about 8 May 1965 and was found guilty of the charge and specification.  The approved sentence provided for reduction to pay grade E-1 and forfeiture of $55.00 per month for 2 months.

4.  On 10 September 1965, the applicant was tried by a special court-martial.  He pled guilty to the charge and specification of being AWOL from on or about 6 July to on or about 20 August 1965 and was found guilty of the charge and specification.  The approved sentence provided for reduction to pay grade E-1, forfeiture of $80.00 per month for 4 months, and confinement for 4 months.

5.  On 27 October 1965, the applicant was tried by a general court-martial.  He pled guilty to the charge and specification of escaping from lawful confinement and was found guilty of the charge and specification.  The applicant’s sentence was to be discharged from the service with a bad conduct discharge, to forfeit all pay and allowances, and to be confined at hard labor for 12 months.  (Two previous convictions considered.)  On 16 November 1965, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, forfeiture of all pay and allowances becoming due after the date of the action, and confinement at hard labor for 6 months.  He also directed the record of trial be forwarded to The Judge Advocate General of the Army for review by a Board of Review.

6.  On 30 November 1965, the Board of Review, U.S. Army, held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact.  Accordingly, it affirmed the findings of guilty and the sentence as approved.

7.  Headquarters, Fort Leavenworth, Kansas, General Court-Martial Order Number 40, dated 29 January 1966, shows that the applicant's sentence to a bad conduct discharge, forfeiture of all pay and allowances becoming due on and after the date of the convening authority’s action, and confinement at hard labor for 6 months was affirmed pursuant to Article 66.  This document also shows the sentence was ordered duly executed, the applicant to be confined in the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, and the confinement served therein, or elsewhere as competent authority may direct.  This document further shows the provisions of Article 71(c) having been complied with, the sentence was ordered duly executed.

8.  A DD Form 214 issued to the applicant on 14 February 1966 confirms he was discharged with a characterization of service of under conditions other than honorable and issued a Bad Conduct Discharge Certificate, under the provisions 
of Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharge), paragraph 1b, based on an approved sentence of a general court-martial imposing a bad conduct discharge.  At the time of his discharge the applicant had completed 9 months and 7 days of net active service during the period of service under review and he had 235 days of time lost.

9.  Department of the Army, Office of the Provost Marshal General, Washington, DC, letter, dated 8 March 1966, subject:  Clemency, shows that as a result of consideration of the applicant’s case by the Secretary of the Army, clemency was disapproved.

10.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, Special Orders Number 90, dated 9 May 1966, in pertinent part, shows the applicant was released from confinement on 17 May 1966 based on expiration of sentence with a bad conduct discharge that was issued on 14 February 1966.

11.  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.

12.  Army Regulation 635-204, in effect at the time of the applicant's separation, provided the authority for separation of enlisted Soldiers with a bad conduct or dishonorable discharge.  Paragraph 1b of that regulation provides that an enlisted Soldier will be discharged with a bad conduct discharge pursuant to an approved sentence of a general or special court-martial imposing a bad conduct discharge.  The appellate review must be completed and the sentence affirmed before it can be duly executed.

13.  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.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to a general, under honorable conditions discharge because his general court-martial was his attorney’s first case, the real truth about his military service and what caused him to go AWOL were never mentioned by his attorney, his military experience was inconsistent with his up-bringing, and he now suffers from PTSD.

2.  There is no available evidence that the applicant encountered the atrocities that he claims to justify his actions.  The applicant presented no evidence to support his claim he suffers from PTSD or what may have caused that condition.

3.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant’s rights were protected throughout the court-martial process.

4.  The applicant's contentions that the truth about his military service and what caused him to go AWOL were never mentioned by his attorney, that his military experience was inconsistent with his up-bringing, and his alleged psychological issues all relate to evidentiary/mitigating matters that could have been raised in the court-martial appellate process and furnish no basis for recharacterization of his discharge.

5.  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.

6.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency would not be appropriate in this case.

7.  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.  







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)                                         AR20090003602



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ABCMR Record of Proceedings (cont)                                         AR20090003602



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