BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090009412 


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 a general under honorable conditions discharge (GD).

2.  The applicant states, in effect, that he enlisted in the Army at the age of 17 and served both in the Republic of Korea (ROK) and in the Republic of Vietnam (RVN).  He claims that at the age of 19 while serving in the RVN, he was involved in a major combat action and survived the bloodiest battle of the Vietnam War.  He also states his duty station upon his return to the United States in December 1967 was Fort Hood, Texas.  He states he had problems adjusting to military life at Fort Hood which led to his developing an alcohol problem and ultimately resulted in his absence without leave (AWOL).  He claims he was court-martialed as a result of his AWOL and was sentenced to a BCD.  He claims that the presiding judge at his court-martial informed him that based on his good service prior to his AWOL, his BCD would be upgraded within 6 months.

3.  The applicant provides a self-authored statement 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 record shows he enlisted in the Regular Army (RA) and entered active duty on 10 May 1965.  He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the ROK from 13 October 1965 through 12 November 1966 and in the RVN from 20 December 1966 through 19 December 1967.  It also shows he was promoted to private first class on 29 September 1966 and that this is the highest rank he attained while serving on active duty.  Item 41 (Awards and Decorations) shows he earned the National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal with Device (1960), Army Commendation Medal (ARCOM) with "V" Device, and Combat Infantryman Badge (CIB).

4.  On 23 December 1965, a special court-martial (SPCM) found the applicant guilty of violating Article 113 of the Uniform Code of Military Justice (UCMJ) by leaving his post as a sentinel prior to being relieved on or about 4 December 1965.  The resultant approved sentence was confinement at hard labor for 3 months (suspended) and a forfeiture of $50.00 per month for 6 months.

5.  On 3 December 1966, the applicant reenlisted for 6 years.

6.  On 12 December 1968, an SPCM found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from on or about 8 May 1968 until on or about 24 November 1968.  The approved sentence was a reduction to pay grade E-1, a forfeiture of $97.00 pay for 6 months, and confinement at hard labor for 6 months (suspended).

7.  On 14 July 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for being AWOL from on or about 7 June 1969 through on or about 24 June 1969.  His punishment for this offense was a forfeiture of $50.00 per month for 2 months.

8.  On 1 April 1970, an SPCM found the applicant guilty of three specifications of violating Article 86 of the UCMJ for being AWOL during the following periods:  19 July-22 October 1969, 23-30 October 1969, and 31 October 1969-5 February 1970.  The resultant sentence was a reduction to private/E-1, a forfeiture of $75.00 per month for 5 months, confinement at hard labor for 5 months, and a BCD.  The convening authority approved the sentence.

9.  Headquarters, III Corps and Fort Hood, Fort Hood, Texas, SPCM Order Number 62, dated 25 May 1970, suspended so much of the unexecuted portion of the sentence to confinement and forfeiture promulgated in SPCM Order Number 20 for 3 months at which time, unless suspension was sooner vacated, the unexecuted portion of the sentence to confinement and forfeitures would be remitted without further action.

10.  On 24 June 1970, the U.S. Court of Military Review, after consideration of the entire record, held that the findings of guilty and sentence approved by the convening authority in the applicant's case were correct in law and fact and affirmed the findings and sentence.

11.  On 24 June 1970, SPCM Order Number 78, issued by Headquarters, III Corps and Fort Hood, Fort Hood, Texas, directed that Article 71(c) of the UCMJ having been complied with and the sentence having been affirmed, the BCD portion of the applicant's sentence be duly executed.  On 15 July 1970, the applicant was discharged accordingly.

12.  The DD Form 214 issued to the applicant upon his discharge on 15 July 1970 shows he was separated under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations), by reason court-martial and that he received a BCD.  It also shows that at the time he completed a total of 1 year, 8 months, and 26 days of creditable active military service and had accrued 686 days of time lost due to AWOL and confinement.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, established the policy for the separation of members with a dishonorable discharge or a BCD pursuant to an approved sentence of a general or SPCM.  It stated that discharge would be accomplished only after the completion of the appellate process and affirmation of the court-martial findings and sentence.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge was the result of his inability to adjust to military life upon his return to the U.S. after completing tours in both the ROK and the RVN, during which he participated in the bloodiest battle of the war and therefore should be upgraded to a GD, was carefully considered.  However, there is insufficient evidence to support this claim.

2.  In this case, the evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.  Although the applicant's record does confirm he earned the ARCOM with "V" Device and CIB, his overall record of service is not sufficiently meritorious to support an upgrade of his BCD given his extensive disciplinary history which included three court-martial convictions and a record of NJP.

3.  Furthermore, 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 extensive disciplinary history, the type of discharge directed and the reasons were therefore appropriate.  As a result, 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.



      ____________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)                                         AR20090009412



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ABCMR Record of Proceedings (cont)                                         AR20090009412



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