IN THE CASE OF:	  

		BOARD DATE:	       15 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090005318 


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 an honorable or general under honorable conditions discharge.

2.  The applicant states he was drafted at the age of 23 and he was still young.  He served in Vietnam, was exposed to Agent Orange, and like so many other young men, he became haunted by his experiences in Vietnam.

	a.  When he returned to the United States he was absent without leave (AWOL) and subsequently spent some time in confinement.  He feels that he served his sentence and should not have to pay for this crime for the rest of his life.

	b.  The applicant adds he has been married for 19 years and works hard to support his family, has worked for the same company for 25 years, and has been a model citizen since he left the military.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a letter from his employer, Sherrill Furniture.

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 inducted into the Army of the United States and entered active duty for a period of 24 months on 28 August 1967.  The applicant was 23 years of age when he entered active duty.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).  He served overseas in the Republic of Vietnam from 14 February 1968 through 10 July 1968.

3.  On 8 February 1969, the applicant was tried by a special court-martial.  He pled guilty to the charge and specification of being AWOL from on or about 19 August 1968 to on or about 8 January 1969 and was found guilty of the charge and specification.  The approved sentence provided for reduction to the grade of private (E-1), to be confined at hard labor for 6 months (suspended for 6 months), and forfeiture of $73.00 per month for 6 months (no previous convictions considered).

4.  On 17 April 1970, the applicant was tried by a general court-martial.  He pled guilty to the charge and specification of being AWOL from on or about 2 March 1969 to on or about 20 January 1970 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 9 months (one previous conviction considered).  On 17 April 1970, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 6 months, and forfeiture of $40.00 per month for 6 months (the forfeitures becoming due on and after the date of the action).  He also directed the record of trial be forwarded to The Judge Advocate General of the Army for review by a Board of Review.

5.  On 20 March 1970, the U.S. Army Court of Military Review 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.

6.  Headquarters, Fort Bragg, North Carolina, General Court-Martial Order Number 61, dated 15 July 1970, shows that the applicant's sentence to a bad conduct discharge, confinement at hard labor for 6 months, and forfeiture of $40.00 per month for 6 months becoming due on and after the date of the convening authority’s action was affirmed pursuant to Article 66.  This document also shows the applicant was to be confined in the Post Stockade, Fort Bragg, North Carolina, 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.  Effective 24 July 1970, the unexecuted confinement was remitted.

7.  A DD Form 214 issued to the applicant on 24 July 1970 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 635-200 (Personnel Separations - Enlisted Personnel) with separation program number 292 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 11 months and 15 days of net active service during the period of service under review and he had 702 days of lost time.

8.  In support of his application he provides a Sherrill Furniture letter, dated 9 March 2009, written by the Human Resources Director of the company.  The Human Resources Director confirms the applicant has worked for the company for over 30 years and he has known him for the past 25 years.  He attests to the applicant’s character and work ethic, and also his commitment to his family.

9.  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.

10.  Army Regulation 635-200, 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.  That regulation provided that an enlisted Soldier would 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 could be duly executed.

11.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded because he was young when he was drafted, he was haunted by his Vietnam experience which caused him to go AWOL, and his post-service conduct should serve to mitigate his mistake and the character of discharge he received.

2.  Records show that the applicant was 24 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

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.  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.

5.  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.

6.  The applicant's contentions regarding his post-service conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

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.



      ________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)                                         AR20090005318



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ABCMR Record of Proceedings (cont)                                         AR20090005318



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