IN THE CASE OF:	

		BOARD DATE:	10 September 2009

		DOCKET NUMBER:  AR20090005706 


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 general, under honorable conditions. 

2.  The applicant states that he was discharged with a BCD when in fact he was suffering from post traumatic stress disorder (PTSD).  He also states that he fought in the jungles of Vietnam for his country.  When he was wounded, the hospital fixed his body but not his mind.  As a combat veteran and Purple Heart recipient, he asks for the chance for medical coverage from the Department of Veterans Affairs (VA).  He has been a responsible citizen, gainfully employed, and a family man for all of his adult life.

3.  The applicant provides no additional documentation 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 military records show he enlisted in the Regular Army, in pay grade E-1, on 6 April 1965, for 3 years.  He completed basic and advanced training and was awarded military occupational specialty 11B, Light Weapons Infantryman.  He was promoted to pay grade E-3 on 28 April 1966.  He served in Vietnam from 8 September 1965 to 15 March 1967. 

3.  On 24 September 1966, the applicant was convicted pursuant to his pleas by a special court-martial of one specification each of failing to go to his appointed place of duty and failing to obey a lawful order on 13 August 1966.  He was sentenced to confinement at hard labor for six months, a forfeiture of $64.00 pay per month for six months, and a reduction to pay grade E-1.  The sentence was adjudged on 24 September and approved on 26 September 1966. 

4.  On 20 December 1966, Headquarters, 2nd Battalion, 14th Infantry (Golden Dragons), APO San Francisco, suspended the unexecuted portion of the approved sentence of confinement at hard labor for six months until 1 April 1967, at which time unless the suspension was sooner vacated, the unexecuted portion of the sentence would be remitted without further action.

5.  On 21 November 1967, the applicant was convicted pursuant to his pleas by a general court-martial of one specification of the wrongful appropriation of an automobile, of a value of about $500.00, the property of another Soldier, on 19 June 1967; two specifications of absenting himself from his unit from 17 June to 21 June 1967 and from 7 July to 30 September 1967; and one specification of escaping from lawful custody on 7 July 1967.  He was sentenced to be dishonorably discharged, to forfeit of all pay and allowances, and to be confined at hard labor for two years.  The sentence was adjudged on 21 November 1967.

6.  On 22 December 1967, Headquarters, 1st Armored Division (Old Ironside), Fort Hood, Texas, approved only so much of the sentence as provided for a BCD, forfeiture of all pay and allowances, and confinement at hard labor for 11 months.  The record of trial was forwarded to The Judge Advocate General of the Army for review. 

7.  On 12 June 1968, Headquarters, Fort Leavenworth, Fort Leavenworth, Kansas, approved and affirmed the applicant's sentence and ordered that the sentence be duly executed.  

8.  The applicant was discharged on 24 June 1968, in pay grade E-1, under the provisions of Army Regulation 635-204, with a BCD.  He was credited with 1 year, 11 months, and 24 days of net active service and 453 days lost time due to absence without leave and confinement.  His separation document does not list any awards.  

9.  Army Regulation 635-204 (Personnel Separations Dishonorable and BCD), in effect at the time, set forth the basic authority for the separation of enlisted personnel as a result of court-martial.  Paragraph 1(a) of the regulation provided, in pertinent part, that an enlisted person would receive a BCD pursuant only to an approved sentence of a court-martial imposing a BCD.  The appellate review must be completed and the affirmed sentence ordered duly executed.

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3-7b at the time, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allows such characterization.

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 ABCMR is not empowered to change a court-martial 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.  Notwithstanding the applicant's contentions, the evidence of record shows that the applicant was convicted by a special court-martial of failing to go to his appointed place of duty and failing to obey a lawful order.  He was sentenced to confinement at hard labor for six months, a forfeiture of pay for six months, and a reduction to pay grade E-1.  He was convicted by a general court-martial of the wrongful appropriation of the property of another Soldier, absenting himself from his unit from 17 June to 21 June 1967 and from 7 July to 30 September1967, and escaping from lawful custody.  He was sentenced to a BCD, forfeiture of all pay 
and allowances, and confinement at hard labor for two years.  He was discharged pursuant to the sentence of a general court-martial and was issued a BCD after the sentence was affirmed.

2.  Trial by general court-martial was warranted by the gravity of the offenses charged.  A BCD is adjudged by a court-martial when it determines a Soldier should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment.  The applicant's offenses, when weighed with his overall disciplinary history, warranted this punishment.

3.  There is also no evidence the applicant was suffering from PTSD at the time, absent medical evidence such as the findings of a psychiatrist which would indicate that he was suffering from a mental or emotional defect that was so severe that he could not tell right from wrong and adhere to the right, that issue does nothing to demonstrate an injustice in the BCD punishment.

4.  The applicant has provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations, with due process.  From the evidence in this case, it appears the applicant knew and understood the reasons for his discharge and the type of discharge he would be receiving.

5.  The applicant's desire to have his BCD upgraded so that he can qualify for medical and/or other benefits administered by the VA and other Federal and State social services organizations has been considered; however, the Board does not grant relief solely for the purpose of an applicant qualifying for benefits administered by these agencies.

6.  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 is not warranted in this case.

7.  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 any evidence that would satisfy this requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request.






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)                                         AR20090005706



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ABCMR Record of Proceedings (cont)                                         AR20090005706



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