IN THE CASE OF:	  

		BOARD DATE:	    29 December 2010

		DOCKET NUMBER:  AR20100014990 


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 the dishonorable discharge of her late husband, a former service member (FSM), be upgraded to a general discharge.  

2.  She states she feels a review of his discharge is long overdue and the discharge he received was unfairly punitive, as a Soldier serving today under the same conditions and laws would not have received so punitive a judgment.  She also states she is the spouse of 32 years of a former Vietnam veteran who died on 26 March 2008.  As a Soldier during war time, her husband served tours of duty overseas in combat.  His overall conduct and performance throughout his service had been exemplary and he received awards and medals of distinction for his service.  He became addicted to opiates while serving overseas and while under the influence of this addiction, committed an offense that he was convicted of and served time for.  

3.  She further states upon his release from prison, he was discharged and sent home.  He was not offered any form of assistance to aid in his rehabilitation for either his addiction or help in transitioning back into civilian life and instead faced an uncertain future and suffered years of hardship due to this.  She believes this same situation would have been handled differently according to today's military standards and procedures.

4.  She also states her husband was convicted of taking a $12.00 money order while under the influence of drugs.  He was sentenced to time in Leavenworth, which he served as a Soldier.  Had he been discharged at the time of the offense, this might have justified the lower grade discharge status.  However, since he served time as a Soldier in a military prison, she believes his discharge should not reflect this isolated incident.  Her husband made a mistake in judgment due to his dependence on drugs which he developed while in the service.  He admitted his offense, never made excuses for his behavior, and he served time for his offense through incarceration.  His service until that regretful incident was honorable.  His service in Vietnam involved several combat situations and he received several awards in recognition of his efforts.  She feels it would be a regretful error to discount his otherwise honorable time in service by denying him the recognition afforded those who served their country in a time of war.

5.  She further states, in effect, in a memorandum from the Secretary of Defense, dated 28 April 1972, the Secretary's intent seems to be clear concerning rehabilitation and treatment of drug use and his desire for recharacterization of discharge status for those who received punitive discharge and dismissals for the use of drugs.  Surely, her husband's conviction, clearly due to impaired judgment due to his drug use, would fall under this domain.  

6.  A sidebar conference between the judge and counsel during her husband's court-martial demonstrated the judge had issues with her husband's impairment and ability to form intent at the time he committed the offense.  Her husband did not receive a medical or psychiatric evaluation and was not considered for medical attention or treatment as stated by the directives.  This request is not only on her husband's behalf, but also on behalf of his two surviving sons and his father, himself a Veteran of World War II.  It would bring comfort to all of his family to see that her husband receive the recognition he deserves as a Soldier who served his country in the time of need.

7.  She provides:

* Certificate of Marriage
* FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* U.S. Army Court of Military Review Assignment of Errors and Brief on Behalf of Appellant
* FSM's Death Certificate

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show he enlisted in the Regular Army in pay grade E-1 on 20 March 1968, for 3 years.  He completed training and was awarded military occupational specialty 71B (Clerk Typist).  He was advanced to pay grade E-4 on 21 January 1969.  He served in Vietnam from 12 September 1968 through 29 August 1969.  

2.  On 6 June 1969, the FSM accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully and falsely altering a DD Form 689 (Individual Sick Slip) and failing to go to his appointed place of duty on 2 June 1969.  He again accepted punishment under Article 15, UCMJ, on 19 June 1969, for failing to go to his appointed place of duty on 16 June 1969.

3.  On 19 December 1969, the FSM was convicted by a special court-martial of being absent without leave (AWOL) from 16 October to 24 November 1969.  He was sentenced to a reduction to pay grade E-3 and a forfeiture of $28.00 pay per month for 3 months.  

4.  On 7 January 1970, the convening authority approved the sentence and ordered the sentence duly executed.

5.  On 16 August 1971, the FSM was convicted by a general court-martial of committing forgery of a money order on 27 January 1971 and larceny of mail of other Soldiers on 20 April 1971.  He was sentenced to be discharged from the Army with a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 2 years, and reduction to pay grade E-1.  

6.  On 24 August 1971, the FSM's counsel submitted a petition for clemency.  Counsel stated, in effect, the FSM asked that clemency be considered in order to help him obtain competent medical assistance for an illness (drug addiction) contracted in the service while honorably serving his country.  

7.  A Review of the Staff Judge Advocate, dated 2 September 1971, found no error which materially prejudiced the FSM's substantial rights, the findings of guilty to be correct in law and fact, the guilty pleas of the FSM established his guilt beyond a reasonable doubt, and the sentence was legally correct.  

8.  On 30 December 1971, Secretarial Authority changed the dishonorable discharge to a bad conduct discharge (BCD).

9.  A U.S. Army Court of Military Review Assignment of Errors and Brief on Behalf of Appellant, dated 7 January 1972, submitted by defense counsel on behalf of the FSM, briefed the FSM's background and summary of offenses.  Counsel stated the FSM was convicted of serious offenses; however, it was imperative, in order to evaluate an appropriate punishment for such conduct, to also consider the offenses were committed while the FSM was under the influence of drugs and because he was addicted to drugs.  Counsel also stated the FSM's conduct was motivated not by a desire that he could be characterized generally as a "criminal," but rather by those of pathological nature.  Rehabilitation of the FSM and a return of the FSM to participate and contribute to society would not be accomplished unless action was taken under the policy announced in Army Regulation 600-32 [currently known as Army Regulation 600-85 (The Army's Substance Abuse Program)] and the FSM's discharge is set aside and the period of confinement was reduced substantially.  Counsel requested the court reassess the sentence to include setting aside the punitive discharge and reducing substantially the term of confinement at hard labor.

10.  On 29 February 1972, the U.S. Army Court of Military Review opined that the Court, having found the approved findings of guilty correct in law and fact and having determined on the basis of the entire record that it should be approved, affirmed the finding of guilty.  The court affirmed only so much of the sentence as provide for a BCD, 12 months confinement, total forfeitures, and reduction to pay grade E-1.  

11.  On 8 March 1972, the FSM underwent a psychiatric examination.  The evaluating psychiatrist found no psychiatric indication for or against clemency at that time.  He stated he was recommending no restoration and no restoration was desired.

12.  In a letter, dated 17 March 1972, the Secretary of the Army advised a Member of Congress that the FSM's court-martial took into consideration one previous special court-martial for an unauthorized absence from 16 October to 24 November 1969.  On 2 September 1971, the convening authority of the general court-martial, the Commanding General of the U.S. Army Field Artillery Center and Fort Sill, reduced the period of confinement to 12 months, but otherwise approved the adjudged sentence.  The maximum sentence authorized in that case was a dishonorable discharge, confinement at hard labor for 10 years, total forfeitures, and reduction to pay grade E-1.  In accordance with pertinent Army regulations, the U.S. Disciplinary Barracks at Fort Leavenworth was designated as the place of confinement pending completion of appellate review.

13.  The Secretary of the Army also advised that while confined the FSM's case would be periodically considered by the Army and Air Force Clemency and Parole Board and the Office of the Secretary of the Army to determine whether a change of discharge, reduction in sentence, or other clemency action was merited.  As a result of the initial clemency consideration, the Secretary of the Army on 31 December 1971 directed that so much of the FSM's sentence as provide for a dishonorable discharge be changed to a BCD.  That change would be effective when the discharge was ordered into execution.  Clemency as to the confinement portion was not approved.  

14.  The Secretary of the Army further advised the FSM's record of trial was referred to the U.S. Army Court of Military Review and the court affirmed the finding of guilty and only so much of the sentence as provide for a BCD.  The FSM was being advised of the court's decisions and his right to petition the U.S. Court of Military Appeals.  He assured all aspects of the FSM's cases had been given full and careful consideration at each level of review and his legal rights would continue to be fully protected.  The FSM's records failed to disclose any evidence of drug addiction when he was approved for part-time service as an alternate mail clerk.  The FSM was seen by psychiatrist and social worker and participated regularly and voluntarily in group psycho-therapy sessions specifically designed for individuals with drug-related problems.  The Special Assistant of the Under Secretary of the Army advised the FSM's parents and another member of the family that he would personally review the FSM's file, request a further clemency review, and inform the parents of the results.

15.  On 30 May 1972, the U.S. Court of Military Appeals denied the FSM's petition for review of his case.

16.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, General Court-Martial Orders Number 713, dated 19 June 1972, affirmed the sentence and noted the sentence of confinement had been served and the FSM was restored to duty pending completion of appellate review.

17.  In a letter, dated 21 June 1972, the Acting Provost Marshal General advised the FSM's parents that the U.S. Court of Military Appeals denied their son's petition for review on 30 May 1972.  The type of offenses and the circumstances under which they were committed were matters of record; however, they were not the only factors taken into consideration when an individual in military confinement was considered for clemency.  Other elements, including institutional adjustment and conformance to rules and regulations, were taken into consideration also before a decision was made.  The FSM had incurred a number of infractions of rules at the disciplinary barracks, which undoubtedly were considered during the course of the clemency review.  He was originally scheduled for release on 4 June, but had forfeited an accumulative total of 37 days of good conduct time for misconduct.  

18.  The FSM was discharged in pay grade E-1 on 13 July 1972, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 11-1b, as a result of a general court-martial, and issued a BCD.  He was credited with 3 years and 13 days of net active service and 422 days of lost time.

19.  The FSM’s records contain no documented evidence of acts of valor or achievement warranting an upgrade of his discharge.

20.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1b specified an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it could be duly executed.

21.  Army Regulation 635-200, paragraph 3-7b, specified a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

22.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, US Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to change a court-martial 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 evidence shows that the FSM was convicted by a general court-martial and he was found guilty of forgery and larceny of mail.  He was discharged pursuant to the sentence of a general court-martial and he was issued a BCD after the sentence was affirmed.  The general court-martial the FSM received was warranted by the seriousness of the offenses charged.  His offenses, when weighed with his overall record and disciplinary history, warranted this punishment.  

2.  While the FSM's records failed to disclose any evidence of drug addiction during his service as an alternate mail clerk, he was provided assistance through group psycho-therapy sessions designed for individuals with drug-related problems.  There is no evidence a drug addiction impaired his ability to perform and complete his service.  On 30 December 1971, it was directed that so much of the FSM's sentence that provided for a dishonorable discharge be changed to a BCD.  His case was given full and careful consideration at each level of review. During a review for clemency, it was noted he had incurred a number of infractions of the rules at the disciplinary barracks which resulted in his forfeiture of an accumulated 37 days of good conduct time for misconduct.  

3.  The applicant's contention that the discharge her late husband received was unfairly punitive has been noted.  However, the FSM was charged with forgery of a money order endorsement with intent to defraud and theft of mail.  Each offense by itself merited the action directed notwithstanding the amount of the money order.  The applicant has provided no evidence to show that her husband's discharge was unjust at the time of his offenses.  There is no evidence that the FSM would not have received so punitive a judgment under the same conditions and laws as a Soldier today.  This is especially true given his prior Article 15s and special court-martial conviction.  The Army has and continues to provide each individual a careful review of their case and full protection of their legal rights.  The applicant has not shown that was not done in her husband's case.

4.  There is no error or injustice in the FSM's record.  He was properly discharged in accordance with pertinent regulations, with due process.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which the FSM was convicted.  

5.  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 record, offenses, 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.

6.  In view of the foregoing evidence, the applicant is not entitled to an upgrade of her husband'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)                                         AR20100014990



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ABCMR Record of Proceedings (cont)                                         AR20100014990



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