IN THE CASE OF:	  

		BOARD DATE:	       22 September 2009

		DOCKET NUMBER:  AR20090006533 


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 his dishonorable discharge be upgraded to a general or a bad conduct discharge.

2.  The applicant states that his belief as a conscientious objector became fixed and firm shortly after joining the Army and that he applied for discharge as a conscientious objector on two separate occasions but was turned down.  He adds that his discharge should be upgraded in the interest of fairness and justice as he has been a good citizen and a contributor to society since his discharge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 23 June 1970; a copy of page 4 of the 4-page Review of The Staff Judge Advocate, dated 28 August 1969; an undated self-authored statement; and a copy of a VA Form 21-22 (Appointment of Veteran Service Organization as Claimant's Representative), dated 31 March 2009, in support of his request.

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 records show he was inducted into the Army of the United States and entered active duty on 6 November 1967.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was subsequently assigned to Fort Lewis, WA. 

3.  On 30 January 1968, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period on or about 13 January 1968 through on or about 18 January 1968.  A copy of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) is not available for review with this case; however, his records contain a copy of Unit Orders Number 5, issued by Headquarters, 5th Battalion, 2nd Training Brigade, Fort Lewis, WA, on 2 February 1968, affecting a forfeiture of the applicant's pay in the amount of $47.00 per month for 1 month effective 30 January 1968.

4.  On 28 August 1968, the applicant pleaded guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 1 July 1968 through on or about 13 August 1968.  The Court sentenced him to confinement at hard labor for 3 months, a forfeiture of $41.00 pay for 3 months, and a reduction to private (PVT)/E-1.  The sentence was adjudged on 28 August 1968.

5.  On 3 September 1968, the convening authority approved the sentence and ordered it executed, but suspended the portion of the sentence which provided for confinement at hard labor for 3 months until 27 November 1968.

6.  On 25 September 1968, the portion of the applicant's suspended sentence to hard labor for 3 months was vacated and the unexecuted portion of this sentence was ordered executed.

7.  On 25 February 1969, Headquarters, Department of the Army, denied the applicant's request for a conscientious objector status.

8.  On 28 February 1969, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failing to repair at the prescribed time on or about 27 February 1969.  His punishment consisted of 14 days of restriction, 14 days of extra duty, and a forfeiture of $26.00 pay for 1 month (all suspended for 30 days).

9.  On 28 April 1969, the Commanding General, Fort Lewis, WA, returned the applicant's second request for a conscientious objector status without action after determining that his application was substantially the same as his initial application.

10.  On 18 June 1969, the applicant pleaded not guilty at a General Court-Martial to one specification of willfully disobeying a lawful command from his commanding officer to board the truck and be escorted to the U.S. Army Overseas Replacement Station, Fort Lewis, WA, on or about 12 May 1969.  The Court found him guilty and sentenced him to confinement at hard labor for 2 years, forfeiture of all pay and allowances, and a dishonorable discharge.  The sentence was adjudged on 18 June 1969. 

11.  On 29 August 1969, the convening authority approved the sentence and except for that part of the sentence extending to the dishonorable discharge ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

12.  On 10 June 1970, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence, except for the portion pertaining to confinement which the Court reduced to 15 months.

13.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 597, dated 22 June 1970, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s dishonorable discharge sentence executed.

14.  The applicant was discharged from the Army on 23 June 1970.  The DD Form 214 he was issued shows he was discharged in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separations), as a result of court-martial, with a dishonorable discharge.  This form further shows the applicant completed a total of 1 year, 2 months, and 10 days of creditable military service.  He also had 296 days of lost time.

15.  The applicant submitted an undated self-authored statement in which he chronicles his early life, induction, and the denial of his two requests for conscientious objector status.  He adds that since his discharge he has led a positive life raising a family and not having any run-ins with the law.  He also states that he would like to restore his right to own a firearm but can’t do this with a conviction. 

16.  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.

17.  Army Regulation 635-200 governs the separation of enlisted personnel.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  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.

19.  Army Regulation 635-200, paragraph 3-10 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a General Court-Martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  Additionally, a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a General or Special Court-Martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his dishonorable discharge should be upgraded to a general or a bad conduct discharge.

2.  Although unrelated to his General Court-Martial and ultimate discharge, the applicant’s prior misconduct, evidenced by one instance of a Special Court-Martial, two instances of NJP, and two instances of AWOL, is chronicled throughout the Proceedings as a period of military service marred by indiscipline, misconduct, and total disregard for military discipline and authority. 

3.  The applicant was convicted by a General Court-Martial, which was warranted by the gravity of the offense charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  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.

4.  The applicant was given a dishonorable discharge pursuant to an approved sentence of a General Court-Martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and the rights of the applicant were fully protected.  

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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.  He did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to an upgrade of his discharge. 

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)                                         AR20090006533





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ABCMR Record of Proceedings (cont)                                         AR20090006533



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