IN THE CASE OF:	  

		BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090015469 


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 bad conduct discharge be upgraded to a general discharge. 

2.  The applicant states he was young at the time and had been in the Army only 1 year when he was sent to Vietnam.  He met another Soldier in Vietnam who introduced him to drugs and alcohol.  This helped him do the job in Vietnam despite getting in trouble.  When he left Vietnam and came home, he found his wife living with her pimp.  He was devastated and resorted to more alcohol and drug use.  He is asking for clemency, not benefits.  He is sorry for his actions; he has made changes in his life.

3.  The applicant provides a copy of his code of ethics; a character reference letter, dated 9 July 2007, from his pastor; a letter, dated 4 May 2007, from his city mayor; a copy of a certificate of appreciation, dated 24 March 2007, from Prison Fellowship Ministries; copies of two diplomas, dated 15 June 2005 and 15 November 2002, awarding him an Associate and Bachelor of Biblical Studies degrees; a copy of a certificate of ordination, dated 3 October 2004; a copy of a certificate of license, dated 15 July 2003; a copy of a certificate of training, dated 25 February 2002; a copy of a certificate of completion, dated November 2001; a copy of a letter, dated 20 December 2000, from the Department of Labor, State of Delaware; a copy of a business license, dated 2006; a copy of college enrollment verification, dated 5 August 2009; and a copy of his Department of Veterans Affairs (VA) medical documents, records, consults, progress notes, and other medically-related documents, dated on various dates in 2007 and 2008.

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 born on 15 January 1949 and enlisted in the Regular Army (RA) for a period of 3 years at the age of 17 on 25 January 1966.  He held military occupational specialty 12A (Pioneer).  He was honorably discharged on 25 April 1967 for the purpose of immediate reenlistment.

3.  He executed a reenlistment in the RA on 26 April 1968 and was subsequently reassigned to the Republic of Vietnam.  He served in Vietnam from on or about 27 June 1967 to 26 June 1968.  His awards and decorations include the National Defense Service Medal, Vietnam Service and Campaign Medals, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and two overseas service bars.

4.  On 25 September 1967, at a summary court-martial in Vietnam, he pled not guilty to one specification of committing assault upon another Soldier with a knife on or about 2 September 1967.  He also pled guilty to one specification of unlawfully striking another Soldier on the face with his fists on or about 2 September 1967.  The court found him guilty of both specifications and sentenced him to a forfeiture of $94.00 pay.  The convening authority approved his sentence on 27 September 1967.

5.  His records reflect he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 12 June 1968, in Vietnam, for violation of curfew on or about 27 May 1968 and disobeying a lawful order on or about 27 May 1968.  His punishment consisted of a reduction to private first class/E-3 and a forfeiture of $32.00 pay.


	b.  On 3 September 1968, at Fort Belvoir, VA, for being absent without leave (AWOL) from on or about 25 August 1968 to 30 August 1968.  His punishment consisted of a reduction to private/E-2 and 14 days of restriction.

6.  On 28 January 1969, at a special court-martial at Fort Belvoir, he pled guilty to one specification of being AWOL from on or about 19 November 1968 to on or about 9 January 1969.  The court sentenced him to a reduction to private/E-1, a forfeiture of $20.00 pay per month for 3 months, and confinement at hard labor for 3 months.  The convening authority approved the sentence on 11 February 1969.  

7.  On 20 February 1969, the unexecuted portion of the sentence to confinement was suspended 5 months with a provision for automatic remission.

8.  On 13 May 1969, he departed his Fort Belvoir unit in an AWOL status and was subsequently dropped from the Army rolls on the same date.  He surrendered to military authorities in Baltimore, MD, and was transported to Fort Meade, MD, on 28 July 1971.

9.  On an unknown date in 1971, the convening authority preferred court-martial charges against the applicant for one or more specification(s) of being AWOL for 806 days.  A copy of the charge sheet is not available for review with this case.

10.  A copy of the court-martial order that sentenced him to a bad conduct discharge is not available for review with this case.  However, his records contain Special Court-Martial Order Number 48, issued by Headquarters, Fort Meade, on 4 May 1972, showing the approved sentence to a bad conduct discharge and confinement at hard labor for 2 months as promulgated in Special Court-Martial Order Number 19, issued by the same headquarters on 28 February 1972 affirmed the sentence and ordered the sentence to be executed.

11.  On 2 June 1972, U.S. Army Personnel Control Facility, Fort Meade, published Special Orders Number 108 directing his transfer to the Separation Transfer Station for the purpose of separation under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), with a bad conduct discharge.

12.  He was discharged from the Army on 9 June 1972.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of chapter 11 of Army Regulation 635-200 as a result of court-martial, with an under other than honorable conditions character of service.  It further shows he completed 3 years, 7 months, and 9 days of creditable active service and he had a total of 1,011 days of lost time.
13.  He submitted the following documents:

	a.  A copy of his code of ethics used by him as a guide for living life.

	b.  A character reference letter, dated 9 July 2007, from his pastor who describes him as a sober and honest man who has put the problems of alcohol and drugs behind him and moved on to serve God.

	c.  A letter, dated 4 May 2007, from his mayor addressing his concerns regarding drugs in the neighborhood.

	d.  A copy of a certificate of appreciation, dated 24 March 2007, from Prison Fellowship Ministries addressing the applicant's strong belief in God.

	e.  Copies of two diplomas, dated 15 June 2002 and 15 November 2005, awarding him an Associate and Bachelor of Biblical Studies degrees from Friends International Christian University.

	f.  A copy of a certificate of ordination, dated 3 October 2004.

	g.  A copy of a certificate of license, dated 15 July 2003, authorizing him to preach.

	h.  A copy of a certificate of training, dated 25 February 2002, showing he completed prison fellowship instructor training.

	i.  A copy of a certificate of completion, dated November 2001, showing he successfully completed volunteer in-prison certification.

	j.  A copy of a letter, dated 20 December 2000, from the Department of Labor, State of Delaware that determined he was eligible to participate in the Federal Bonding Program.

	k.  A copy of a business license, date 2006, for a contractor-resident.

	l.  A copy of college enrollment verification, dated 5 August 2009.

	m.  A copy of his DVA medical documents, records, consults, progress notes, and other medically-related documents, dated on various dates in 2007 and 2008, showing a diagnosis of Post Traumatic Stress Disorder.


14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel:

   a.  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.  

   b.  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.

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 requests that his bad conduct discharge should be upgraded.

2.  The complete facts and circumstances surrounding his court-martial conviction are not available for review with this case.  However, his records contain sufficient documentation that show he was arraigned and tried by a special court-martial for a lengthy period of AWOL and that the court sentenced him to a bad conduct discharge.  His records also contain a court-martial order which shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered his bad conduct discharge sentence executed.

3.  The gravity of the offense charged warranted trial by a special court-martial.  In the absence of evidence to the contrary it is presumed that the applicant's conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct which led to his conviction.  His discharge accurately reflects his military service.  He submitted no evidence to undermine the presumption of regularity.
4.  With respect to his arguments and the evidence he submitted:

	a.  His service in Vietnam was considered.  However, his misconduct spanned his entire period of military service and although not related to the court-martial conviction, a review of his entire record of service including his NJP, previous courts-martial, and period of AWOL, clearly shows his overall period of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. 

	b.  The evidence of record shows he was 17 years of age at the time he enlisted and 18 years of age at the time he reenlisted.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military obligations.  Furthermore, there is no evidence in his records, and he did not provide substantiating evidence, that shows his repeated misconduct and indiscipline were the result of his age.

	c.  His post-discharge, personal and professional achievements as well as his medical condition were considered.  However, they are not sufficiently mitigating to grant the requested relief.

5.  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.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, he is not entitled to the requested relief.

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)                                         AR20090015469



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ABCMR Record of Proceedings (cont)                                         AR20090015469



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