IN THE CASE OF:	  

		BOARD DATE:	    28 April 2011

		DOCKET NUMBER:  AR20100024823 


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 to a general discharge.

2.  He states he served 1 year, 2 months, and 2 days in Vietnam.  He states he was a teenager and he honorably carried his load for his country.

3.  He provides a self-authored letter to the Department of Veterans Affairs, dated 27 September 2010.

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 19 July 1968 for a period of three years.  He was trained in and awarded military occupational specialty 11B (light weapons infantryman).  The highest rank/grade he attained during his service was private first class (PFC)/E-3.

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on four occasions for:

* failing to go at the time prescribed to his appointed place of duty
* being absent from his unit 
* being absent without leave (AWOL) from 25 to 27 September 1969
* going from his appointed place of duty

4.  His disciplinary record also shows he was convicted by a special and summary court-martial of disobeying a lawful command from his superior commissioned officer and being AWOL from 12 to 24 October 1970.

5.  On 11 May 1971, he was convicted pursuant to his guilty pleas by a general court-martial of violating a lawful general regulation by possessing two syringes and one hypodermic needle and wrongfully receiving stolen property, the property of another Soldier.  He was sentenced to be discharged from the service with a bad conduct discharge, forfeiture of two-thirds pay per month for 12 months, and confinement at hard labor for 12 months.

6.  On 25 June 1971, the court-martial convening authority approved the sentence.  The forfeitures of pay and allowances became due after the date of the convening authority action.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review and he was to be confined in the Post Stockade, Fort Bragg, NC, or elsewhere, as competent authority would direct.

7.  General Court-Martial Order Number 31, dated 8 July 1971, suspended the unexecuted portion of the sentence to confinement at hard labor for 12 months for a period of 12 months.  The court-martial order stated that the unexecuted portion of the sentence would be remitted without further action unless the suspension was sooner vacated.  

8.  The U.S. Army Court of Military Review determined that two NJPs were improperly admitted in evidence and considered by the military judge prior to sentencing.  The findings of guilty were affirmed.  The sentence was reassessed based on the error and the entire record and the U.S. Army Court of Military 


Review affirmed only so much of the sentence as provided for a bad conduct discharge, forfeiture of $127.00 pay for per month for 12 months, and confinement at hard labor for 12 months.

9.  The bad conduct discharge was ordered to be executed on 14 August 1972.

10.  On 28 September 1972, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), with a separation program number of 292 (Other than Desertion (Court-Martial)).  He completed 4 years, 1 month, and 4 days of total active service with 35 days of time lost.

11.  He provided a self-authored letter addressed to the Department of the Veterans Affairs, dated 27 September 2010, in which he provides additional reasons that he turned to substance abuse because of his combat experiences.  He stated he:

* served 4 years, 1 month, and 4 days of service including his 1 year, 2 months, and 2 days of service in Vietnam
* was 18 years old and the son of a military veteran
* chose to join the Army instead of continuing his education
* witnessed many of his young fellow Soldiers being wounded
* was caught with marijuana cigarettes in his pocket and he was sent to a jail in Long Binh, Vietnam

12.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation 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.

	b.  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.

13.  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 trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  The applicant’s contentions are acknowledged.  However, these issues are not sufficiently mitigating to warrant relief in this case.

3.  His service record shows he received four Article 15s and he was convicted by special, summary, and general courts-martial for various offenses.  He also accrued 35 days of time lost during his tenure of service.  The record does not contain evidence that the applicant’s misconduct was a result of mental disease or defect.  

4.  Based on the seriousness of the misconduct for which he was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting his requested relief.

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 applicant's undistinguished record of service 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.

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)                                         AR20100024823



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ABCMR Record of Proceedings (cont)                                         AR20100024823



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