IN THE CASE OF:	

		BOARD DATE:	  01 June 2010

		DOCKET NUMBER:  AR20090020323 


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 upgrade of his bad conduct discharge (BCD) to a general under honorable conditions discharge (GD).

2.  The applicant states he had a drug problem that the Army would not take care of and he had to go to prison.  He contends he had a drug problem in Vietnam and when he got back they just gave him to the civilian court.  He adds that his mother died in 1968 and he had problems.

3.  The applicant provides no additional documentary evidence in support of this 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's record shows he enlisted in the Regular Army and entered active duty on 5 November 1969.  He was trained in and awarded military occupational specialty 72C (Telephone Switchboard Operator).

3.  The applicant's record shows that he was advanced to the rank/grade of private first class (PFC)/E-3 on 30 April 1970, and this is the highest rank he attained while serving on active duty.  It also shows he served in the Republic of Vietnam from 16 April 1970 through 9 April 1971.  It further shows that during his active service he earned the Vietnam Service Medal with two bronze service stars, the RVN Campaign Medal, and the Sharpshooter Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.

4.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on the following dates:

	a.  23 May 1970, for failing to go at the time prescribed to his appointed place of duty;

	b.  10 September 1970, for disobeying a lawful order;

	c.  23 November 1970, for disobeying a lawful order, failing to go at the time prescribed to his appointed place of duty, and for being absent, without authority, from his place of duty;

	d.  8 February 1971, for failing to go to his appointed place of duty;

	e.  20 March 1971, for sleeping upon his post while being posted as a sentinel;

	f.  16 June 1971, for being absent from his unit, without authority, on two occasions;

	g.  27 June 1971, for failing to go, at the time prescribed, to his appointed place of duty;

	h.  1 September 1971, for violating a lawful regulation by operating a vehicle without a valid driver's license and by operating a vehicle without proper registration;

	i.  16 September 1971, for disobeying a lawful order from his commanding officer.

5.  On 6 April 1972, the applicant was convicted by a special court-martial (SPCM) of the following:

	a.  two specifications of violating Article 86 of the UCMJ by absenting himself from his unit, without authority, from 1 December 1971 to 31 January 1972 and from 7 February 1972 to 10 February 1972;

	b.  two specifications of violating Article 121 of the UCMJ by stealing a television of a value of about $75.00, property of the 175th Finance Company, Fort Hood, Texas and stealing a television of a value of about $70.00, property of the Post Exchange, Fort Hood, Texas.

6.  The applicant was sentenced to confinement at hard labor for 157 days, forfeiture of $157.00 pay for 5 months, and to be discharged from the armed forces with a BCD.

7.  On 5 May 1972, the court-martial convening authority approved the sentence and directed the applicant be placed in confinement pending appellate review.

8.  On 15 June 1972, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.

9.  Headquarters, III Corps and Fort Hood, Texas, SPCM Order Number 42, dated 8 August 1972, confirmed the applicant's conviction and the sentence had been affirmed and directed, Article 71(c) of the UCMJ having been complied with, the applicant's sentence be duly executed.  

10.  On 29 November 1972, the applicant was discharged.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of chapter 11, Army Regulation 635-200, by reason of court-martial and was issued a DD Form 259A (Bad Conduct Discharge, Under Other Than Honorable Conditions) Discharge Certificate.  

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated, in pertinent part, that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence was 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.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been carefully reviewed.  While the applicant's family and personal situations at the time were unfortunate, there is insufficient evidence to support this claim.

2.  The applicant's record documents no acts of valor or significant achievement; however, it does reveal a disciplinary history that includes NJP punishment under the UCMJ on 9 occasions and a court-martial conviction.

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 therefore were appropriate.

4.  The evidence of record confirms the applicant's conviction and discharge were effected in accordance with applicable law and regulations, and there is no evidence of any error or injustice related to the court-martial process.  As a result, there is an insufficient evidentiary basis to support clemency in this case.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


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)                                         AR20090020323



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ABCMR Record of Proceedings (cont)                                         AR20090020323



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