IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100012209 


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 his bad conduct discharge be upgraded to honorable.

2.  The applicant states:

* He has been a good citizen for 40 years
* He is in need of veterans' benefits
* He stole food to share with other enlistees and was given 6 months punishment
* He served more than 3 years in total, which was the term of his enlistment 
* He is a Vietnam veteran who was wounded in action and he served the rest of his time in Germany

3.  The applicant provides four character reference letters in support of his 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 enlisted in the Regular Army on 1 April 1969 for a period of 
3 years.  He successfully completed his training and was awarded military occupational specialty 76Y (armorer/unit supply specialist).  

3.  On 6 January 1970, nonjudicial punishment (NJP) was imposed against the applicant for absenting himself from his unit.  His punishment consisted of a forfeiture of pay, restriction, and extra duty. 

4.  The applicant arrived in Germany in February 1970.

5.  On 13 November 1970, while in Germany, NJP was imposed against the applicant for absenting himself from his unit for being absent without leave from 26 October 1970 to 4 November 1970.  His punishment consisted of a forfeiture of pay, restriction, and extra duty. 

6.  On 5 March 1971, while in Germany, the applicant was convicted by a special court-martial of disobeying a lawful order, breaking restriction, unlawful entry with intent to commit larceny, larceny, and possession of marijuana.  He was sentenced to be reduced to pay grade E-1, to be confined at hard labor for 4 months, to forfeit $80 pay per month for 6 months, and to be discharged from the service with a bad conduct discharge.  On 23 April 1971, the convening authority approved the sentence.

7.  The applicant was transferred to the United States on 22 March 1972.

8.  The decision of the U.S. Army Court of Military Review is not available.  However, on 7 July 1972, the convening authority ordered the bad conduct discharge to be executed.

9.  Accordingly, the applicant was discharged with a bad conduct discharge on 10 August 1972 under the provisions of Army Regulation 635-200, as a result of court-martial.  He had served a total of 2 years, 10 months, and 27 days of creditable active service with 165 days of lost time.  

10.  There is no evidence in the applicant's service records that shows the applicant served in Vietnam or was wounded in action.

11.  The applicant provided four character reference letters from friends.  They attest the applicant is a generous and kind person, trustworthy, honest, loyal, and a true friend.  He is totally disabled.   

12.  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.

13.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

14.  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.

15.  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.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

2.  The ABCMR does not correct records solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.


3.  The applicant contends he stole food to share with other enlistees and was given 6 months punishment.  However, evidence of record shows he was convicted of disobeying a lawful order, breaking restriction, unlawful entry with intent to commit larceny, larceny, and possession of marijuana.  

4.  The evidence of record does not support the applicant's contention he was a Vietnam veteran who was wounded in action.  There is no evidence in his military records that shows the applicant served in Vietnam. 

5.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

6.  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.

7.  The applicant's record of service included two NJPs, one special court-martial conviction, and 165 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable 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)                                         AR20100012209





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ABCMR Record of Proceedings (cont)                                         AR20100012209



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