IN THE CASE OF:	  

		BOARD DATE:	        21 July 2009  

		DOCKET NUMBER:  AR20090004239 


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 discharge under honorable conditions discharge; and that he be awarded the Purple Heart (PH).   

2.  The applicant states, in effect, that his discharge should be upgraded based on his overall record of service to include his combat service during which he was wounded in action.   

3.  The applicant provides a self-authored statement in support of his application. 

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 record shows that he enlisted in the Regular Army and entered active duty on 16 February 1967.  He was trained in and awarded military occupational specialty (MOS) 62E (Construction Machine Operator).  

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to private first class (PFC), on 16 June 1967, and this is the highest rank he attained while serving on active duty.  It further shows he served in the Republic of Vietnam (RVN) from 9 July 1967 through 16 May 1968.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company A, 1st Engineer Battalion, 1st Infantry Division, performing duties in MOS 62E as a loader operator.  It also shows that, on 17 May 1968, he entered a patient status at the 249th General Hospital, Japan.  Item 40 (Wounds) is blank and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  Item 44 time lost shows that he accrued a total of 752 days of time lost during five separate periods of being absent without leave (AWOL) between 10 August 1968 and 20 November 1969 and three separate periods of confinement between 12 September 1969 and 29 October 1970.  

4.  The applicant's Official Military Personnel File (OMPF) contains a Standard Form (SF) 502 (Clinical Record) that shows he was treated for an injury he sustained to his right knee, on 26 July 1967, when a barrel he was standing on tipped over.  The OMPF also contains a Casualty Report and Western Union Telegram, dated 11 May 1968, and a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 21 May 1968 which confirm the applicant was wounded as a result of an accidental discharge of his weapon (M-79 Rocket Launcher) on 5 May 1968.  The accidental wound resulted in the amputation of his right small finger.  The casualty report confirms this wound was the result of an accident and it was not caused by enemy action.  

5.  On 23 March 1970, a general court-martial (GCM) found the applicant guilty of three specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 1 November 1968 through 14 April 1969; from on or about 16 April through 13 August 1969; and from on or about 
10 October through 21 November 1969.  He was also found guilty of two specifications of violating Article 95 of the UCMJ by escaping from lawful confinement on or about 10 October 1969 and on 5 December 1969.  The resulting sentence from the military judge was reduction to private (PV1)/E-1, confinement at hard labor for 15 months, a forfeiture of all pay and allowances and a dishonorable discharge (DD).  The sentence was approved by the convening authority in Headquarters, Fort Riley, Fort Riley, Kansas, GCM Number 28, dated 13 May 1970.  

6.  On 23 December 1970, the United States Army Court of Military Review, having found the findings of guilty and the sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that the findings of guilty and only so much of the sentence that provides for a BCD, confinement at hard labor for 15 months, a forfeiture of all pay and allowances, and reduction to PV1 should be approved, the same as thus modified were affirmed.  

7.  On 10 February 1971, Headquarters, United States Army Disciplinary Barracks, Fort Leavenworth, Kansas, GCM Order Number 166, confirmed the applicant's sentence, as modified by the United States Army Court of Military Review, had been affirmed pursuant to Article 66 of the UCMJ and directed, Article 71(c) of the UCMJ having been complied with, that the sentence as modified be duly executed.  

8.  On 19 February 1971, the applicant was discharged under the provisions of chapter 11, Army Regulation 635-200, by reason of court-martial and received a BCD.  The DD Form 214 he was issued at the time shows he completed a total of 1 year, 7 months, and 22 days of creditable active military service and he had accrued 752 days of lost time due to being AWOL and in confinement.  

9.  A PMG(K) Form 95 (Factual Data for Restoration, Clemency and Parole Review) shows in the confinement data portion of the form that the applicant escaped from custody twice, his adjustment to the disciplinary barracks was unsatisfactory, and he received a disciplinary report on 20 July 1970.  The psychiatric portion of the form shows the applicant was diagnosed with an emotionally unstable personality and that clemency was not recommended.  The classification board voted unanimously to deny clemency and to grant parole, and the commandant of the disciplinary barracks recommended the same.  

10.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by military medical personnel; and a record of this medical treatment must have been made a matter of official record.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated, in pertinent part, that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

12.  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.

13. 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH was carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action.  The evidence of record is void of any documents suggesting the injuries the applicant sustained in the RVN were received as a result of enemy action.  

2.  The evidence of record confirms the knee injury and amputation of the applicant’s right small finger were the result of accidents he sustained in the RVN, as evidenced by medical treatment records, a casualty report, a Western Union Telegram, and a line of duty determination on file in his record.  As a result, absent any evidence showing he was wounded as a result of enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

3.  The applicant's contention that his BCD should be upgraded based on his overall record of service was also carefully considered.  However, by law, any redress by this Board of the finality of a court-martial conviction under the UCMJ, 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.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.  Although he completed combat service in the RVN his record reveals no acts of valor or significant achievement during this combat tour.  

5.  However, the applicant’s record does reveal an extensive disciplinary history that includes accrual of 752 days of lost time due to several periods of AWOL, periods of confinement, and escaping lawful custody on two separate occasions. 

6.  Further, a favorable recommendation for clemency was not given by a classification board and the commandant of the disciplinary barracks based on the applicant's less than stellar record while in confinement at the disciplinary barracks.  Therefore, given the gravity of the offenses that resulted in his GCM conviction and BCD, his overall record of service is not sufficiently meritorious to support clemency 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)                                         AR20090004239



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ABCMR Record of Proceedings (cont)                                         AR20090004239


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