IN THE CASE OF:	  

		BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100014484 


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 an upgrade of his bad conduct discharge.

2.  The applicant states he is a Purple Heart recipient and that he suffered from battle fatigue and a mental breakdown subsequent to his combat injury and service in Vietnam.  He has had flashbacks/dreams ever since.  He also states that he was absent without leave (AWOL) during which time he sold drugs, robbed a church, attempted suicide, and spent time in mental institutions.  He adds that he has a history of violence subsequent to his discharge and he is now drawing social security income for his mental condition.

3.  The applicant did not provide any additional evidence.

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 records show he enlisted in the Regular Army for a period of 3 years on 24 January 1966 and held military occupational specialty 11B (Light Weapons Infantryman).

3.  He served in Vietnam from on or about 18 June 1967 to on or about 24 June 1968.  During his service in Vietnam, he was honorably discharged on 26 October 1967 for the purpose of immediate reenlistment and he executed a 
6-year reenlistment on 27 October 1967.

4.  His records show he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Purple Heart, Combat Infantryman Badge, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and two overseas service bars.

5.  His records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

* on 3 August 1966 for being AWOL from 30 July 1966 to 1 August 1966
* on 7 September 1966 for leaving his post as a sentinel without being properly relieved
* on 14 December 1967 for leaving his sentinel duties without being properly relieved
* on 6 April 1968 for sleeping on post
* on 29 April 1968 for being AWOL from 28 to 29 April 1968
* on 19 June 1968 for wrongfully possessing marijuana

6.  On 26 March 1973, he pled guilty at a general court-martial to two specifications of being AWOL, from 17 January 1969 to 14 November 1969 and 20 November 1969 to 7 January 1973.  The court sentenced him to a forfeiture of all pay and allowances, confinement at hard labor for 4 months, and a bad conduct discharge.

7.  On 16 October 1973, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the applicant's sentence executed and the record of trial forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  On 30 October 1973, he was restored to duty pending completion of the appellate review.

8.  In 1974, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

9.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 119, dated 5 February 1974, shows the convening authority ordered the applicant's bad conduct discharge sentence executed after completion of all required post-trial and appellate reviews.

10.  He was discharged from the Army on 19 April 1974.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial with an under other than honorable conditions discharge.  It further shows he completed 2 years and 9 months of creditable military service and he had 1,637 days of lost time.

11.  On 23 February 1977, the applicant was notified by certified letter that the Army Discharge Review Board (ADRB) would consider hearing his case under former President Ford's Proclamation Number 4313, dated 16 September 1974, as a matter of priority given his prior service in Vietnam and being wounded in action.  He acknowledged receipt of the certified letter, but he failed to respond.

12.  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.

13.  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.

14.  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.  The applicant's contention that his discharge should be upgraded because his misconduct was caused by battle fatigue subsequent to his service in Vietnam was carefully considered, but found to be without merit.

2.  He was convicted by a general court-martial that sentenced him to a bad conduct discharge.  The gravity of the offenses charged warranted his trial by a general court-martial.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct which led to his conviction.  His discharge accurately reflects his military service at that time.

3.  With respect to his arguments, his service in Vietnam was considered.  However, his misconduct spanned his entire period of military service and although not related to the court-martial conviction, a review of his entire record of service including his NJP and period of AWOL clearly shows his overall service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

	a.  The evidence of record shows he was provided with an opportunity to have his case considered by the ADRB under a Presidential Proclamation and that despite acknowledging the notification letter, he failed to act.

	b.  His post-discharge drug-dealing activities and admission to a mental institution were considered.  However, they are not sufficiently mitigating to grant the requested relief.  Furthermore, there is insufficient evidence in the available records that shows his misconduct was a result of any medical condition.

4.  After a review of his entire record of service it is clear his overall service did not meet the criteria for an honorable or a general discharge.  As a result, he is not entitled to an upgrade of his 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)                                         AR20100014484



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ABCMR Record of Proceedings (cont)                                         AR20100014484



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