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ARMY | BCMR | CY2009 | 20090004636
Original file (20090004636.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20090004636 


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 (BCD) be upgraded to an honorable discharge.

2.  The applicant states, in effect, that it was determined that he should be discharged under other than honorable conditions because he was a young unstable individual who had gone through combat duty in Vietnam and was exposed to drugs and alcohol to an extensive level.  He goes on to state that he was robbed of all his possessions and money by the Viet Cong and upon returning to the United States at the age of 19, he went to several Army Depots and received pay that he was not authorized to receive.  He also states that being a young and stupid drug addict, he thought he could get away with those horrific incidents; however, he found out different after being incarcerated.  He continues by stating that he has made a tremendous change in his life and is now an ordained minister of the Gospel of Jesus Christ and he desires the upgrade of his discharge so that he may enjoy the pleasures of being considered an upstanding citizen.  He further states that it took some time for him to get to where he felt he had cleaned up his life and realized that he had fought for this country and deserves an honorable discharge.

3.  The applicant provides a one-page explanation of his application, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and four Certificates of Ordination.



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 was born on 8 August 1950 and enlisted in the Regular Army (RA) on 17 January 1968 for a period of 3 years.  He completed his basic combat training at Fort Jackson, SC and he was transferred to Fort Sill, OK to undergo advanced individual training (AIT) as a cannoneer.  He completed that training and he was transferred to Fort Benning, GA, where he underwent parachutist training.  He was subsequently transferred to Fort Bragg for duty as a cannoneer.

3.  On 26 September 1968, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 27 September 1968 for a period of 4 years and training in the communications career management field (CMF).

4.  On 8 October 1968, he was transferred to Fort Gordon, GA to undergo training in the communications CMF; however, there is no evidence to show that he completed that training and he was returned to Fort Bragg as a cannoneer.  He was advanced to the pay grade of E-3 on 5 April 1969.

5.  On 15 April 1969, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 14 to 15 April 1969.  His punishment consisted of restriction for 7 days.

6.  On 17 April 1969, NJP was imposed against the applicant for being absent from his place of duty.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.

7.  On 11 June 1969, he was transferred to Fort Monmouth, NJ to attend training as a dial central office repairer.


8.  On 7 August 1969, NJP was imposed against the applicant for being disrespectful in language and deportment towards his commanding officer.  He was removed from training and he was transferred to Vietnam on 19 September 1969 for duty as a cannoneer.

9.  On 30 January 1970, NJP was imposed against him for failing to sign out of his unit on 28 January 1970 and for failing to go at the time prescribed to his appointed place of duty on 29 January 1970.  His punishment consisted of extra duty and restriction.

10.  The applicant departed Vietnam on 18 September 1970 and he was transferred to Hunter Army Airfield, GA.

11.  On 26 October 1970, NJP was imposed against the applicant for communicating a threat to kill a senior noncommissioned officer.  His punishment consisted of a forfeiture of pay and extra duty.

12.  On 17 June 1971, the applicant was convicted, pursuant to his pleas, by a General Court-Martial of three specifications of stealing U.S. currency from the finance office at Fort Sheridan, IL on 21 September 1970, in the amount of $163.00; for stealing $338.00 from the finance office at Fort Monmouth on
24 September 1970; and for stealing $300.00 from the finance office at Fort Gordon on 28 September 1970.  He was also convicted of four specifications of removing pay vouchers from his finance records.  He was sentenced to confinement at hard labor for 3 years, forfeiture of all pay and allowances, and a BCD.  However, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 18 months, forfeiture of all pay and allowances, reduction to the pay grade of E-1, and a BCD.

13.  The applicant was transferred to the United States Disciplinary Barracks at Fort Leavenworth, KS to serve his sentence. 

14.  On 11 May 1972, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.  

15.  On 14 August 1972, the United States Court of Military Appeals denied the applicant's petition for grant of review of his case.

16.  On 21 August 1972, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 2 years,
10 months, and 10 days of total active service and he had approximately 434 days of lost time due to AWOL and confinement.  

17.  A review of the applicant's Official Military Personnel File (OMPF) shows that on 20 July 1969, the applicant presented at the emergency room at Fort Monmouth and he was diagnosed with heavy alcohol intake.  He was hospitalized from 2 April to 12 April 1971 for alcoholism and he was further diagnosed with a personality disorder. 

18.  Paragraph 3-7a of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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.

19.  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.

20.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions and supporting documents have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses.  

4.  The applicant exhibited a pattern of misconduct well before being transferred to Vietnam as evidenced by his disciplinary record prior to going to Vietnam.  While he is to be commended for his post-service conduct and his desire to serve his community, that in itself does not serve as a basis to upgrade a duly affirmed BCD. 

5.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency in the form of either a fully honorable or a general discharge under honorable conditions is not warranted in this case.

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)                                         AR20090004636



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20090004636



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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