IN THE CASE OF:	

		BOARD DATE:	 25 February 2010 

		DOCKET NUMBER:  AR20090013207 


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 discharge be upgraded. 

2.  The applicant states, "a dumb mistake as a youngster messes you up for life."  He states that he served his country honorably and he was injured while serving in Vietnam.  He indicates he has been a model citizen since his discharge and he would like to get help from the Department of Veterans Affairs (VA) for malaria which he contracted in Vietnam.

3.  The applicant provides a checklist, a Purple Heart Certificate, a Certificate of Accomplishment, a verification of training, a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and ten reference letters in support of this application.  The reference letters indicate the applicant was always prompt for work, and obedient to authority.  He took orders well, and his duty performance was always professional.  He was always a gentleman, honest, trustworthy, a productive citizen, and a good father and husband.   

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 was inducted into the Army of the United States on 22 April 1969.  He was awarded the military occupational specialty of light weapons infantryman, and pay grade E-4 was the highest pay grade that he attained.

3.  The applicant served in Vietnam from 8 October 1969 until he was medically evacuated due to a fragment wound to his neck in December 1969.

4.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 19 September 1970 for operating his privately owned vehicle without a valid post tag (twice), for disobeying a lawful order, and for failing to report to his appointed place of duty.

5.  General Court-Martial Order Number 75, dated 14 July 1971, shows the applicant was arraigned and tried for commission of the following offenses during the period 3 to 4 February 1971:  stealing twenty-four assorted stereo tape cartridges, the property of a specialist five; unlawfully receiving a camera, a tape deck, and a radio, the property of a specialist four, which he knew had been stolen; the total value of the property was $65.00.  He was also charged with wrongfully altering the figure "2" on Enlisted Man's Post Tag DD 442 to read 
DD 448, with the intent to deceive.

6.  The applicant was found guilty of all charges.  He was sentenced to a forfeiture of all pay and allowances, confinement for 1 year, reduction to pay grade E-1, and a bad conduct discharge.  The sentence was adjudged on 1 July 1971.

7.  On 10 September 1971, the appellate review was completed and the sentence affirmed.  On 27 December 1971, the sentence was ordered duly executed.

8.  On 17 January 1972, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1b, as a result of a general court-martial.  He was issued a DD Form 259A (Bad Conduct Discharge Certificate).  The DD Form 214 the applicant was issued shows he completed 2 years, 2 months, and 9 days of active service.

9.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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 discharge with characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

11.  Army Regulation 635-200, paragraph 3-11, provides that 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.

12.  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 accepted NJP for operating his privately owned vehicle without a valid post tag (twice), for disobeying a lawful order, and for failing to report to his appointed place of duty.  He was convicted by a general court-martial for larceny of property valued at $65, receiving stolen property valued at $65, and altering an enlisted man's post tags.

2.  The applicant was issued a bad conduct discharge pursuant to the approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  Conviction and discharge were affected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's entire military record was taken into consideration and given the seriousness of the offenses his service is appropriately characterized.

4.  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.

5.  Clemency is not granted for properly issued discharges for the sole purpose of establishing eligibility for other programs or benefits.

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to an honorable or to a general discharge, under honorable conditions.

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)                                         AR20090013207



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ABCMR Record of Proceedings (cont)                                         AR20090013207



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