IN THE CASE OF:	  

		BOARD DATE:	    23 March 2010

		DOCKET NUMBER:  AR20090015242 


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, in effect, upgrade of his bad conduct discharge (BCD) to an honorable discharge.

2.  The applicant states, in effect, that his abuse of alcohol led to the type of discharge he received and he no longer abuses alcohol.  His character since his discharge has been favorable.  He now has health problems he believes are linked to his service and he would like to receive Department of Veterans Affairs (VA) health care.

3.  In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and 13 character reference letters.

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 enlisted in the Regular Army (RA) in pay grade E-1 on 21 September 1966, for 3 years.  He completed training and was awarded military occupational specialty (MOS) 11B (infantryman).  He was advanced to pay grade E-3 on 4 April 1967.  He served in Vietnam from 1 April 1967 to 31 March 1968.

3.  On 8 October 1967, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order on 7 October 1867 not to purchase alcoholic beverages from civilians.  His punishment included a reduction to pay grade E-2 and a forfeiture of $54.00 pay for one month.  He did not appeal the punishment.

4.  In April 1968, the applicant was convicted by general court-martial of one specification of committing an assault upon another person on 26 January 1968, by shooting him in the abdomen with a .45 caliber pistol, causing him grievous bodily harm.  The applicant was sentenced to confinement at hard labor for one year, reduction to pay grade E-1, and to be discharged with a BCD.  The sentence was adjudged on 15 April 1968.  On 31 May 1968, the convening authority approved only so much of the sentence as provided for a BCD, 8 months confinement, forfeiture of $65.00 pay per months for four months, and reduction to pay grade E-1.

5.  On 31 May 1968, the record of trial was forwarded to The Judge Advocate General of the Army for review.

6.  On 21 October 1968, the Board of Review found the findings of guilty and sentence correct in law and fact and affirmed the sentence.

7.  On 27 November 1968, the appropriate convening authority noted that the findings and sentence was affirmed and pursuant to the applicant’s request for final action, ordered the sentence duly executed.

8.  The applicant was discharged on 13 December 1968, in pay grade E-1, under the provisions of Army Regulation 635-204 (Personnel Separations Dishonorable and Bad-Conduct Discharge), with a BCD.  He was credited with 1 year,
5 months, and 14 days of net active service and 279 days of lost time due to 
confinement.  His DD Form 214 shows he was issued a DD Form 258A (Undesirable Discharge Certificate) and his character of service as under other than honorable conditions.

9.  The applicant submitted 13 character reference letters that state he served proudly in Vietnam and loves his country.

10.  Army Regulation 635-204, in effect at the time, set forth the basic authority for the separation of enlisted personnel as a result of a court-martial.  Paragraph 1(a) of the regulation provided, in pertinent part, that an enlisted person would receive a BCD pursuant only to an approved sentence of a court-martial imposing a BCD.  The appellate review must be completed and the affirmed sentence ordered duly executed.

11.  Army Regulation 635-200 (Personnel Separations - 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 meets the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization will be clearly inappropriate.

12.  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.

13.  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 change a court-martial 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 evidence of record shows that the applicant was convicted by a general court-martial of committing an assault by shooting an individual in the abdomen with a .45 caliber pistol.

2.  Trial by general court-martial was warranted by the gravity of the offense charged.  A BCD is adjudged by a court-martial when it determines a Soldier should be separated for bad conduct.  The applicant's offenses, when weighed with his overall disciplinary history, warranted this punishment.

3.  The applicant has provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations, with due process.  From the evidence in this case, it appears the applicant knew and understood the reasons for his discharge and the type of discharge he would be receiving.

4.  The applicant's desire to have his BCD upgraded so that he can qualify for medical and/or other benefits administered by the VA and other Federal and State social services organizations has been considered; however, the ABCMR does not grant relief solely for the purpose of making an applicant eligible for benefits administered by these agencies.

5.  The documentation provided by the applicant does not provide a sufficient basis for granting clemency as a matter of equity or fairness.  The applicant's desire to have his discharge upgraded is acknowledged; however, a discharge is generally not upgraded based solely on post-service conduct.

6.  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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

8.  The applicant’s sentence as provided for a BCD was affirmed and ordered duly executed; however, his DD Form 214 shows his character of service as under other than honorable conditions and the issuance of an Undesirable Discharge Certificate.  Although it appears that an administrative error was made in the preparation of his DD Form 214, it has long been an unwritten policy of the Board that an applicant will not be made worse off than when they applied to the Board.  For this reason, the Board will not take any action to affect the administrative change to correct the characterization of his discharge as reflected on his DD Form 214.



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)                                         AR20090015242



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ABCMR Record of Proceedings (cont)                                         AR20090015242



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