IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100022199 


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 (BCD).

2.  The applicant states he knows he made a mistake, but he had just returned from Vietnam and he had problems with his wife being with other men.

3.  The applicant provides no additional evidence 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's record shows he enlisted in the Regular Army on 7 June 1963 and he reenlisted for 6 years on 8 July 1964.  He held and served in military occupational specialty 11B (Light Weapons Infantrymen).

3.  The record also shows he attained the rank of staff sergeant/E-6 on 28 February 1969 and this is the highest rank he attained while serving on active duty.  The record also shows he was reduced to sergeant/E-5 for cause on 24 September 1969 and to private/E-1 on 8 May 1972.

4.  The applicant's record shows he served in the Republic of Vietnam (RVN) from 30 June 1967 through 1 November 1968 and that he earned the following awards during his active duty tenure:

* National Defense Service Medal
* Vietnam Service Medal with four bronze service stars
* RVN Campaign Medal
* Purple Heart
* Combat Infantryman Badge
* Marksman Marksmanship Qualification Badge with Rifle Bar
* Sharpshooter Marksmanship Qualification Badge with Automatic Rifle Bar
* two overseas service bars

5.  The record shows a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:

	a.  24 September 1969, for failing to go to his appointed place of duty at the time prescribed on or about 3 September 1969 and for breaking restriction on or about 23 September 1969; and

	b.  9 March 1965, for having an unclean weapon at guard mount on or about 1 March 1965.

6.  The applicant's disciplinary history also includes a special court marital (SPCM) conviction on 13 June 1965 for violating Article 121 of the UCMJ by wrongfully misappropriating money which resulted in his reduction to private/E-1.  It further includes his accrual of 890 days of lost time during two separate periods of being absent without leave (AWOL) between 10 May 1967 and 16 February 1972 and two separate periods of confinement between 13 June 1965 and 12 March 1972.

7.  On 8 May 1972, an SPCM found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from on or about 29 November 1969 though on or about 17 February 1972.  The resulting sentence was to forfeit $192.00 per month for 2 months (suspended), confinement at hard labor for 2 months (suspended), and a BCD.

8.  SPCM Order Number 72, Headquarters, U.S. Army School/Training Center and Fort Gordon, Fort Gordon, Georgia, dated 5 June 1972, shows the sentence adjudged on 18 May 1972 was approved.

9.  On 28 June 1972, the U.S. Army Court of Military Review affirmed the guilty findings and only so much of the sentence that provided for a BCD and confinement at hard labor for 2 months.

10.  On 11 July 1972, Headquarters, U.S. Army School/Training Center and Fort Gordon, Fort Gordon, Georgia, SPCM Order Number 84 directed that Article 71c having been complied with, the sentence be duly executed.

11.  On 28 August 1972, the applicant was discharged under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations), by reason of court-martial with a BCD.  The DD Form 214 he was issued shows he completed a total of 6 years, 9 months, and 16 days of creditable active military service and had accrued 890 days of lost time due to AWOL and confinement.

12.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15 year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, provided the policies and procedures for separating members with a dishonorable or BCD.  It stipulated a Soldier would be given a BCD pursuant only to an approved sentence of a general or SPCM and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

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 contends that his BCD should be upgraded because he knows he made a bad mistake and it was the result of having problems with his wife at the time.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ 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.

3.  Although the applicant generally performed well in combat, his record reveals an extensive disciplinary history that extends from 1965 through his discharge in 1972.  This history includes accepting NJP twice and a previous SPCM conviction.

4.  The evidence reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.  Therefore, given his extensive disciplinary history and the gravity of the offense resulting in his court-martial conviction and BCD, his overall record of service is not sufficiently meritorious to support clemency and/or an upgrade of his discharge.

5.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

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 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)                                         AR20100022199



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100022199



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1