IN THE CASE OF:	  

		BOARD DATE:	    30 September 2010

		DOCKET NUMBER:  AR20100009622 


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 (BCD) be upgraded to a general discharge.

2.  The applicant states, in effect, during his tour in Vietnam there were racial problems.  He was in his cot when four or five African Americans threatened and attacked him.  He contends he was beaten and cut with a straight razor in various places and he still has the scar on his leg.  His jaw was also broken.  He states he did nothing to any of his assailants to cause such actions.  Officers arrived and stopped the assault but directed one of his assailants to take him to the first sergeant's tent.  

3.  He claims he was kicked and yelled at on the way to the tent.  Upon arrival, he was again kicked and pushed into the tent.  He saw an M-16 rifle leaning against a tent pole, and in his defense, he picked up the weapon to protect himself because he was badly injured and bleeding.  He contends when he turned around, the man jumped on him and they fought over the weapon.  The weapon discharged several times injuring the man's feet.  It was accidental, as he was only trying to protect himself.

4.  The applicant adds that the man, who was also injured, gave a straight razor to his friend to kill him (the applicant).  After he left the stockade in Vietnam, he was sent to the stockade at Fort Dix, NJ.  He claims one of his assailants was a guard there, and threatened him (the applicant) again.  The applicant contends he was having a nervous breakdown and developed a severe alcohol problem as a result of the threats.  
5.  The applicant has not provided any documentation in support of his request. 

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 enlisted in the Regular Army on 17 January 1969 for a period of 3 years.  After completion of basic combat and advanced individual training, he was awarded military occupational specialty 67B (O-1/U-6 Airplane Repairman).   

3.  The applicant's DA Form 20 (Enlisted Qualification Record), item 31 (Foreign Service) shows he served 6 months in the Republic of Korea and 12 months in the Republic of Vietnam.  Item 33 (Appointments and Reductions) indicates he was promoted to the rank of specialist/E-4 on 12 August 1970.  

4.  Nonjudicial punishment (NJP) was imposed against the applicant on 
25 November 1970.  He failed to obey a lawful order on 23 November 1970, and failed to go to his appointed place of duty at the prescribed time on 24 November 1970.  His punishment consisted of 14 days extra duty and a forfeiture of $30.00 pay for 1 month.  

5.  His DA Form 20, item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal Date Expiration Term of Service(ETS)) shows he was placed in pre-trial confinement in Vietnam on 12 February 1971.  He faced trial by special court-martial for allegedly shooting another Soldier in the feet with an M-16, with intent to inflict harm.  

6.  A copy of Special Court-Martial Order Number 60, Headquarters, XXIV Corps, dated 2 October 1971, shows that on 10 June 1971, the applicant was convicted of one specification of committing an assault upon another Soldier by shooting at him with a dangerous weapon.  He entered the plea of not guilty.  He was sentenced to confinement at hard labor for 120 days, a forfeiture of $50.00 pay for 3 months, reduction to private/E-1 and a BCD.  
7.  On 2 October 1971, the General Court-Martial Convening Authority approved the sentence as adjudged on 10 June 1971.  On 17 September 1971, the applicant was released from confinement and approved for excess leave on 
20 September 1971, pending the findings of the appellate review.  

8.  Item 44 of his DA Form 20 shows the applicant was absent without leave (AWOL) during the period 25 April through 11 July 1972.  

9.  On 7 April 1972, the United States Army Court of Military Review affirmed the findings and the sentence as approved by the convening authority.  On 25 April 1972, the defense council attempted to serve the applicant a copy of the decision.  He was unsuccessful because the applicant was in an AWOL status. 

10.  A copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 21 July 1972, under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, as a result of a duly reviewed and affirmed special court-martial conviction.  He had completed 2 years, 8 months, and 11 days of total active service and he was furnished a BCD.

11.  His record contains no indication he requested an upgrade of his discharge by the Army Discharge Review Board (ADRB) within that board's 15 year statute of limitations.  

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1(b) of the regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after affirmation of the sentence imposed.

13.  Army Regulation 635-200, paragraph 3-7, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his discharge was carefully considered; however, in the absence of supporting evidence, it does not show merit. 

2.  The applicant was properly discharged pursuant to a sentence by a special court-martial conviction with no evidence of any violation of his rights.  His contentions relate to evidentiary/mitigating matters which could have/should have been finally and conclusively adjudicated n the appellate process.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

4.  The applicant’s contentions have been noted.  However, NJP was imposed against him, he was convicted by special court-martial as a result of acts of misconduct, and he has 294 days of lost time.  In view of the foregoing, his personal conduct does not warrant the relief requested.   

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)                                         AR20100009622



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ABCMR Record of Proceedings (cont)                                         AR20100009622



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