IN THE CASE OF:	  

		BOARD DATE:	       9 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090006094 


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 that:

	a.  he believes some of the charges against him were fabricated;

	b.  his life was threatened at the time;

	c.  he was told that if he ever went back to the field, he would never return alive; and

	d.  he was afraid to leave the base, even if he was court-martialed.

3.  The applicant provides no additional documentation in support of this case.

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 on 18 May 1967 and successfully completed basic training and advanced individual training. He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 31 July 1968, the applicant was convicted by a special court-martial of disobeying a lawful order from a superior noncommissioned officer (NCO) and breaking restriction from his company area.  His sentence consisted of a reduction to the grade of private (PVT)/E-1, forfeiture of $68.00 per month for 3 months, and confinement at hard labor for 3 months (suspended for 90 days).

4.  On 2 November 1968, the applicant was convicted by a special court-martial of disobeying a lawful order from a superior officer and assaulting a fellow Soldier by dropping an armed grenade at his feet.  His sentence consisted of a reduction to the grade of PVT/E-1 and forfeiture of $68.00 per month for 6 months.

5.  On 22 April 1969, the applicant was convicted by a general court-martial of:

	a.  Charge I - behaving with disrespect toward a superior officer;

	b.  Charge II - specification 1, willfully disobeying a lawful order from a superior commissioned officer (lieutenant colonel), and specification 2, willfully disobeying a lawful order from a superior commissioned officer (captain);

	c.  Charge III - willfully disobeying a lawful order from a superior NCO; and

	d.  Charge IV - specification 1, being absent without leave (AWOL) for the period 4 February 1969 through 8 March 1969, and specification 2, being AWOL for the period 13 March 1969 through 15 March 1969.

   e.  His sentence consisted of forfeiture of all pay and allowances, confinement at hard labor for 5 years, and a dishonorable discharge.

6.  On 3 June 1970, the United States Army Court of Military Review (USACMR) set aside and dismissed the findings of guilty of specification 1 of Charge II and Charge III and its specification; the remaining findings were affirmed.  The USACMR affirmed only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 1 year, and forfeiture of all pay and allowances.

7.  On 17 June 1970, the applicant was discharged with a bad conduct discharge under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) by reason of court-martial.  He had completed 1 year, 4 months, and 19 days of creditable active military service with 612 days of lost time due to AWOL and confinement.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  At that time chapter 11 provided policy for the separation of members with a dishonorable or bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  It stated that discharge would be accomplished only after the completion of the appellate process and affirmation of the court-martial findings and sentence.

9.  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.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged and convicted.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the court-martial process.  The discharge appropriately characterizes the misconduct for which the applicant was convicted.  His contentions relate to evidentiary and/or procedural matters which should have been raised and finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.


2.  By law, the ABCMR may not disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

3.  The applicant's entire record of service was considered in this case.  However, given the seriousness of the offenses for which he was convicted and his prior misconduct, it is determined that clemency 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.



      _________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)                                         AR20090006094



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ABCMR Record of Proceedings (cont)                                         AR20090006094



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