IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100010837 


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 discharge characterized as under conditions other than honorable be upgraded to honorable.

2.  The applicant states at the time he was drafted in 1965, he had a wife and three children.  He adds that his monthly pay was not sufficient to support his family and, therefore, he applied for a hardship discharge which was denied.  He offers that he also requested assistance through his Congressman, to no avail.  The applicant states he was very young at the time and made the wrong decision to go absent without leave (AWOL) to earn more money to support his family.  He provides a summary of his work record and responsibilities from 1973 until his retirement in 2004.  The applicant states he is an active member of his community, in good standing with his church, and was inducted into the St. Louis Amateur Baseball Hall of Fame in 2001.  He concludes that since his military life, he has been a productive citizen.

3.  The applicant provides the following:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 215 (Correction to DD Form 214)
* Clemency Discharge Certificate and documentation
* transcript of conviction arrest information
* Congressional correspondence
* excerpts from the internet article "Pardon for Vietnam Draft Evaders"
* resolution (applicant's 30th wedding anniversary)
* letter (Induction to the Amateur Baseball Hall of Fame)
* three supporting statements

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 record shows he was born on 14 February 1942.  He was inducted into the Army of the United States on 22 July 1965.  He was 23 years of age at the time of his induction.  The applicant served in the Republic of Vietnam from 14 December 1965 to on or about 11 October 1966.

3.  General Court-Martial Order Number 11, dated 30 August 1970, shows the applicant was convicted by a general court-martial on 18 March 1970 for being AWOL from 12 October 1966 to 15 December 1969.  His sentence consisted of confinement at hard labor for 1 year and 6 months, forfeiture of all pay and allowances, reduction to the rank of private (E-1), and a dishonorable discharge. 
The sentence was adjudged on 18 March 1970.  The convening authority approved the bad conduct discharge (BCD), 1 year of confinement, and total forfeiture of pay and allowances.

4.  On 21 December 1970, the applicant was restored to duty pending appellate review.  His appellate history is not readily available.  General Court-Martial Order Number 19, dated 17 May 1971, ordered his BCD to be executed.

5.  The applicant's DD Form 214 shows he was discharged under conditions other than honorable on 28 March 1972.  The authority and reason was listed as chapter 11, Army Regulation 635-200 (Personnel Separations).  The type of certificate issued was listed as a DD Form 259A (Bad Conduct).  The applicant completed 2 years, 1 month, and 1 day of total active service.  He had 434 days of lost time subsequent to his normal expiration of term of service and 1,247 days lost under Title 10, U.S. Code, section 972.

6.  The applicant's Clemency Discharge Certificate and DD Form 215 confirm he was granted a clemency discharge on 26 January 1976 upon completion of alternate service pursuant to Presidential Proclamation (PP) 4313.

7.  The applicant provided a transcript of conviction arrest information that stated no record of conviction was found on the applicant by the St. Louis City/County Police Department.

8.  The letter from the Hall of Fame, dated 21 December 2000, shows the applicant was selected for induction into the Greater St. Louis Amateur Baseball Hall of Fame.

9.  The applicant provided two supporting statements that attested to his involvement in the community and one statement from his spouse.  The administrative assistant for the New Sunny Mount Missionary Baptist Church stated the applicant and his wife were long time members and in good standing with the church.  The Alderman of the 27th Ward said the applicant was involved in the efforts to improve the ward and has shown the kind of initiative and dedication needed in the community.  Additionally, the applicant's spouse commented on their 37 years of marriage and said that the applicant is a very nice man to have in her life.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 established policy and procedures for separating members with a dishonorable discharge or BCD.  Paragraph 11-2 provides that a BCD would be given pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

11.  Army Regulation 635-200, 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.

12.  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.

13.  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.

14.  PP 4313, dated 16 September 1974, announced a clemency program designed to provide deserters an opportunity to work their way back into American society.  This proclamation pertained to all individuals who were carried administratively as deserters if their last period of AWOL was between 4 August 1964 and 28 March 1973.  Under this program, eligible enlisted deserters were offered the opportunity to request a discharge under other than honorable conditions for the good of the service if they agreed to perform alternate service under the supervision of the Selective Service System.  Successful completion of alternate service entitled a participant to receive a Clemency Discharge Certificate.  Clemency discharges issued pursuant to PP 4313 did not entitle the individual to any benefits administered by the Department of Veterans Affairs.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his discharge be upgraded because of his financial situation and his age and maturity at the time he was inducted into the military.

2.  There is no evidence and the applicant did not provide any to show that he sought assistance with his financial situation.  Additionally, the records show the applicant was 23 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation.  Therefore, his contention that his financial situation and his age led to his indiscipline are not sufficient to establish a basis for upgrading his discharge.

3.  The applicant failed to provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant an upgrade.

4.  A clemency discharge does not impact the underlying reasons that caused the applicant to receive the BCD.  The applicant's record of service included a conviction by a general court-martial and over 1,680 days of lost time.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service as unsatisfactory.  Therefore, there is no basis to upgrade the applicant's 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)                                         AR20100010837



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ABCMR Record of Proceedings (cont)                                         AR20100010837



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