IN THE CASE OF:	  

		BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090018330 


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 be upgraded to a general discharge. 

2.  The applicant states, in effect, he joined the military with the sole purpose of fighting in the war in Vietnam to help the people of America and Vietnam, but he was denied the opportunity to do so after completing basic and infantryman training.  He states that when he was told he wasn't going to be sent to Vietnam, being denied of what he truly felt was patriotic and to become a man in life, he no longer wanted to be in the military where there were only parties going on, cleaning latrines, and policing up the area.  He states he was an infantryman and he committed the acts of being absent without leave (AWOL), not because he refused to go fight in Vietnam, but because he was denied to go and fight a war.

3.  The applicant provides his social security card and driver's license.

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 on 2 January 1974.  He was awarded military occupational specialty 11B (infantryman).  The highest rank/grade he held during his tenure of service was private/E-2.

3.  Records show that the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 5 June 1975 for being AWOL during the periods 29 May 1975 to 30 May 1975 and 31 May 1975 to 3 June 1975.

4.  Special Court-Martial Order Number 12, dated 27 April 1976, shows the applicant was arraigned and tried for being AWOL during the periods on or about 4 July 1975 to 23 September 1975 and 25 September 1975 to 5 January 1976.  He was sentenced to be discharged from the service with a bad conduct discharge, to forfeit $100.00 pay per month for 4 months, and confinement for 4 months.  The sentence was adjudged on 2 February 1976.

5.  Special Court-Martial Order Number 26, dated 21 July 1976, shows his sentence to a bad conduct discharge was affirmed.  It shows the appellate review was completed and the sentence was ordered duly executed.

6.  Accordingly, on 18 October 1976, the applicant was discharged under other than honorable conditions.  He was issued a DD Form 259A (Bad Conduct Discharge Certificate).  The DD Form 214 (Report of Separation from Active Duty) the applicant was issued shows he completed 1 year, 9 months, and 12 days of active service.  Item 21 (Time Lost) of this document contains the entry "370."

7.  Army Regulation 635-200 (Personnel 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.

8.  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.

9.  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.

10.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted NJP for being AWOL.  He also was issued a bad conduct discharge pursuant to the approved sentence of a special court-martial for being AWOL.  His total lost time was 370 days.  The appellate review was completed and the affirmed sentence ordered duly executed.  His conviction and discharge were affected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  The applicant's character of service is based on the offenses for which he was discharged.  He has not provided sufficient evidence to mitigate the actions he took during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.

3.  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 were therefore appropriate.  As a result, clemency is not warranted in this case.

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



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)                                         AR20090018330



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ABCMR Record of Proceedings (cont)                                         AR20090018330



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