BOARD DATE:	  6 April 2010

		DOCKET NUMBER:  AR20090015009 


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.

2.  The applicant states that he did not assault his commanding officer nor did he disobey a direct order from anyone.  He alleges he was falsely accused.  During the time in question, he lived off base and did not know he was delegated to perform kitchen patrol (KP).

3.  The applicant provides a 2-page 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 enlisted in the Regular Army on 30 July 1965 for a period of 3 years.  He served in Vietnam and his highest grade attained was private first class/E-3.

3.  On 21 December 1965, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty.

4.  On 4 March 1966, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 27 December 1965 to 10 January 1966 and 13 January 1966 to 14 February 1966.  He was sentenced to a forfeiture of $62.00 pay for 6 months, confinement at hard labor for 6 months, and a reduction to private/E-1.

5.  On 6 March 1968, the applicant was convicted by a special court-martial of stealing a camera from a private first class/E-3 and being AWOL from 31 December 1967 to 26 January 1968.  He was sentenced to confinement at hard labor for 6 months (suspended for 6 months) and reduction to private/E-1.

6.  On 21 August 1968, the applicant was convicted by a general court-martial of behaving with disrespect toward a superior officer (two specifications) and assaulting his superior commissioned officer.  He was sentenced to be discharged from the service with a BCD.

7.  On an unknown date, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  On an unknown date, the BCD was ordered to be executed.

8.  The applicant was discharged on 15 April 1969 under the provisions of Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharge) based on court-martial.  He completed 3 years of creditable active service with 249 days of lost time due to AWOL and confinement.

9.  The applicant provided a self-authored statement in support of his claim.  He gave a brief history of his military career and expressed the injustices which occurred in the 1960's between blacks and whites.  He explained the events which led to his BCD.  After a confrontation with a fellow white Soldier, he was beaten with batons by the Military Police (MP) so he decided to live off base where he was not required to perform KP duties.  He was later told by his superior officer that he was going to be put in jail because he was assigned KP duties and did not perform them.  He explained that he did not know he had KP duties since he lived off base.  The applicant described the incidents with the MP's and he was placed in the stockade for 4 months.  He admitted to the charge of petty theft and AWOL, but alleged he did not did not disobey a direct order nor did he assault a superior officer.  He wants his name cleared and every entitlement an honorable serviceman would receive.

10.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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.

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's contentions were carefully considered.  However, there is insufficient evidence on which substantiate his claims.

2.  The applicant's record of service shows he received one Article 15, two special courts-martial convictions, and was convicted by a general court-martial of behaving with disrespect to a superior officer (two specifications) and assaulting his superior commissioned officer.

3.  Based on the seriousness of the misconduct for which the applicant was convicted, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting the applicant's requested relief.

4.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

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)                                         AR20090015009



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ABCMR Record of Proceedings (cont)                                         AR20090015009



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