IN THE CASE OF:	  

		BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100021891


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 upgrade of his bad conduct discharge.

2.  The applicant states, in effect, he got into drugs in Vietnam because he was young, with only an 8th grade education.  He further states he could not read or write and he was afraid of everything in Vietnam.  He states he suffered from post-traumatic stress disorder (PTSD), and because of it, he was incapable of making rational decisions.  He further states he gave in to peer pressure and got into trouble with drugs.  He concludes by stating that while in Vietnam, he tried to serve to the best of his ability.  

3.  The applicant provides no 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 record shows he enlisted in the Regular Army on                  21 January 1967.  He was awarded military occupational specialty 13A (Cannoneer).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  Records show the applicant received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on five separate occasions for the offenses indicated:

* on 16 February 1967, for absenting himself, without authority, from his appointed place of duty, on 16 February 1967 
* on 13 February 1968, for disobeying a lawful order and displaying disrespect toward a superior noncommissioned officer, on 13 February 1968
* on 23 August 1969, for being absent without leave (AWOL) from             19 August 1969 to 22 August 1969
* on 6 February 1970, for failure to obey a lawful general battalion policy, on 6 February 1970
* on 29 December 1970, for being AWOL from 24 December 1970 to        26 December 1970, for disobeying a lawful order, and for displaying disrespect toward a superior commissioned officer, on 24 December 1970

4.  Records show he served in the Republic of Vietnam from 7 November 1970 to 28 July 1971.

5.  He was charged with 2 specifications of a single charge, wrongful possession of marijuana (specification 1) and heroin (specification 2).  At a special court-martial at Nha Trang, Vietnam, he pled guilty to specification 1 and the charge, and not guilty to specification 2.  

6.  On 16 June 1971, the Court found him guilty of both Specifications of the Charge.  The Court sentenced him to a bad conduct discharge, confinement at hard labor for 2 months, and forfeiture of $80.00 per month for 2 months.

7.  On 20 September 1971, the convening authority approved the sentence and, except for the bad conduct discharge, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

8.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

9.  Special Court-Martial Order Number 37, Headquarters, U.S. Army Training Center, Infantry and Fort Lewis, Fort Lewis, WA, dated 20 March 1972, shows that, after completion of all required post-trial and appellate reviews, the bad conduct discharge was ordered executed.

10.  On 3 April 1972, he was discharged in accordance with the provisions of Special Court-Martial Order Number 37 and Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharge).  His DD Form 214 shows he was discharged as a result of court-martial, with an under other than honorable character of service.  This form further shows he completed a total of 5 years and 23 days of creditable military service.

11.  On 18 March 1982, the Army Discharge Review Board reviewed his request for upgrade of his bad conduct discharge and determined there was insufficient evidence to warrant relief.

12.  Army Regulation 635-204, in effect at the time of his separation, set forth the basic authority for the separation of enlisted personnel with dishonorable and bad conduct discharges.  Paragraph 1b of this regulation states that an enlisted person will be discharged with a bad conduct discharge, pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.  The appellate review must be completed and the sentence affirmed before it can be duly executed.

13.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic policy for the separation of enlisted personnel.  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.

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.  The applicant's request for upgrade of his bad conduct discharge has been carefully considered; however, there is insufficient evidence to support his request. 

2.  While the evidence of record supports his contention that his drug usage began during his service in Vietnam, it also shows that his service, prior to Vietnam, contained numerous instances of misconduct as demonstrated by his multiple occasions of NJP. 

3.  There is no evidence he was any less mature than Soldiers who served without engaging in misconduct.  Additionally, his records do not reflect evidence of a diagnosis for mental health issues excusing his misconduct.

4.  He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial, which was warranted by the gravity of the offenses charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.  

5.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 

6.  In view of the foregoing, there is insufficient basis to grant relief.

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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20100021891



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