IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100000702 


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, the mother of a former service member (FSM), requests upgrade of the FSM's undesirable discharge to a general discharge.

2.  The applicant states the FSM:

* served 11 months of foreign service and 2 years of active service
* received the Vietnam Service Medal and Republic of Vietnam Campaign Medal with Device (1960)
* had a stroke and cannot take care of himself
* is receiving welfare and Social Security services

3.  The applicant provides:

* a copy of her designated General Power of Attorney
* a copy of the FSM's DD Form 214 (Report of Transfer or Discharge)
* a copy of documents from the Social Security Administration
* a note from the FSM's doctor

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 FSM enlisted in the Regular Army on 7 July 1969 for a period of 2 years.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty 12A (pioneer).  He served in Vietnam from 14 December 1969 to 16 November 1970 and he received the Vietnam Service Medal and the Republic of Vietnam Campaign Medal with Device (1960).

3.  Between 10 March 1970 and 4 November 1971, nonjudicial punishment was imposed against the FSM on 11 separate occasions for various infractions, including:

* disobeying lawful orders
* disobeying lawful commands
* missing movement through design
* failures to repair
* violating a lawful general regulation
* being absent without leave (AWOL)

4.  On 21 May 1971, the FSM pled guilty and he was convicted by a special court-martial of being AWOL from 9 April 1971 to 13 April 1971, larceny, and unlawful entry with intent to commit larceny.  He was sentenced to discharge from the Army with a bad conduct discharge, confinement at hard labor for
6 months, and forfeiture of $90.00 pay per month for 6 months.  On 3 June 1971, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 4 months, and forfeiture of $90.00 pay per month for 4 months.

5.  On 8 November 1971, having found the findings of guilty and sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that they should be approved, the U.S. Army Court of Military Review affirmed the findings of guilty and sentence.  On 16 December 1971, the convening authority ordered the bad conduct discharge to be executed.


6.  Special Orders Number 10, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 12 January 1972, show the FSM was discharged with a bad conduct discharge on 12 January 1972 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), as a result of court-martial.  He served a total of 2 years and 27 days of creditable active service with 165 days of time lost.  His DD Form 214 shows his character of service as under conditions other than honorable and that he was issued an Undesirable Discharge Certificate.

7.  On 28 March 1974 and 16 September 1976, the Army Discharge Review Board denied the FSM's request for a discharge upgrade.

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

9.  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.

10.  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.  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 FSM was convicted.


2.  The FSM's entire record of service, including his combat service in Vietnam and his service medals, was carefully considered.  However, his record of 
service also included 11 instances of nonjudical punishment, one special court-martial conviction for serious offenses, and 165 days of time lost.  As a result, his record of service was not satisfactory.  Therefore, the FSM's record of service is insufficiently meritorious to warrant a general 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 FSM'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.

4.  Although it appears that an administrative error was made in the issuance of the FSM's DD Form 214 that shows he was issued a DD Form 258A (Undesirable Discharge Certificate) instead of a DD Form 259A (Bad Conduct Discharge Certificate), 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 the FSM's discharge.  However, the applicant and FSM should be aware that the documents directing the type of discharge the FSM was to receive are properly filed in the FSM's Official Military Personnel File (OMPF).

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)                                         AR20100000702





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ABCMR Record of Proceedings (cont)                                         AR20100000702



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