BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100025081 


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 dishonorable discharge.

2.  The applicant states, in effect, the record is unjust and unfair.  He believes the outcome would have been different if he had a better lawyer.  He believes the hearing officer was totally unjust in handling his case.  He was misinformed in about what he could do.  Some of his buddies told him he was misinformed.  He was ready to give his life for his country.  He was also injured while fighting and received the Purple Heart. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 was inducted into the Army of the United States on 3 February 1969.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's records also show he served in Vietnam from on or about 27 June 1969 to 27 March 1970.  His DA Form 20 (Enlisted Qualification Record) shows he was wounded in Vietnam on 28 September 1969 and he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with "1960" Device, an Overseas Service Bar, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation. 

4.  On 6 January 1970, while in Vietnam, the applicant was convicted by a summary court-martial of one specification of failure to repair on or about 
27 December 1969.  The court sentenced him to a suspended reduction to E-2 and a forfeiture of $70.00 pay.  The convening authority approved the sentence on 7 January 1970.

5.  On 3 March 1970, while in Vietnam, he pled guilty at and was convicted by a general court-martial of one specification of lifting his weapon, an M-16A1 rifle, against a commissioned officer, and one specification of behaving with disrespect towards a commissioned officer.  The court sentenced him to be reduced the lowest enlisted grade, a forfeiture of all pay and allowances, confinement at hard labor for 1 year and 6 months, and a dishonorable discharge.

6.  On 3 May 1970, the convening authority approved the sentence and, except for that part of the sentence extending to the dishonorable discharge, ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

7.  On 4 September 1970, that portion of the applicant's sentence pertaining to confinement in excess of 1 year was remitted by order of the Secretary of the Army and the applicant was restored to duty pending appellate review on 4 December 1970. 

8.  On 15 January 1971, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

9.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 271, dated 5 March 1971, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge executed.
10.  The applicant was discharged from the Army on 10 March 1971.  His DD Form 214 shows he was discharged in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a dishonorable discharge.  This document further shows he completed a total of 1 year, 4 months, and 6 days of creditable military service and he had 276 days of lost time.

11.  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.

12.  Army Regulation 635-200 governs 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.

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.  

14.  Army Regulation 635-200, paragraph 3-10, provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his dishonorable discharge should be upgraded.

2.  The applicant was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  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.  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.

3.  The applicant was issued a dishonorable discharge pursuant to an approved sentence of a general court-martial.  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.

4.  There is no evidence in his records and he did not submit any substantiating evidence that shows he was misinformed or not provided adequate defense.   After a careful review of the applicant’s entire record of service it is clear his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient evidence to support an upgrade of the applicant's discharge.  His discharge accurately reflects his military service.  

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)                                         AR20100025081



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ABCMR Record of Proceedings (cont)                                         AR20100025081



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