IN THE CASE OF:	

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100025159 


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 his bad conduct discharge be upgraded to an honorable discharge or a general discharge under honorable conditions.

2.  The applicant states he did not go through the proper channels to be discharged at the time because of family problems.  He states he was very young and did not fully comprehend the consequences of his actions.

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.  He enlisted in the Regular Army on 16 March 1966 at 17 years of age with parental consent.  He completed basic combat and advanced individual training and was awarded military occupational specialty 64 (Heavy Vehicle Driver).

3.  He served in the Republic of Vietnam from 23 March 1967 to 19 March 1968.

4.  On 6 December 1968, he pled guilty and was found guilty by a special court-martial of being absent without leave (AWOL) from on or about 15 July to on or about 31 October 1968.  His sentence consisted of reduction to private/pay grade E-1 and 6 months of confinement.  On 12 December 1968, the sentence was approved, but the execution of 6 months of confinement was suspended for 6 months.

5.  On 26 June 1969, he pled guilty and was found guilty by a special court-martial of being AWOL from on or about 17 December 1968 to on or about 5 May 1969.  His sentence consisted of forfeiture of $46.00 pay per month for 6 months and 6 months of confinement.  One previous conviction was considered.  On 2 July 1969, only so much of the sentence that provided for a forfeiture of $40.00 pay per month for 6 months and 6 months of confinement was approved.

6.  On 11 June 1970, he was tried before a general court-martial.

	a.  He pled not guilty and was found not guilty of being AWOL from on or about 25 October to on or about 28 October 1969.

	b.  He pled guilty and was found guilty of being AWOL from on or about 3 November 1969 to on or about 30 March 1970.

	c.  His sentence consisted of forfeiture of $40.00 pay per month for 6 months, confinement for 6 months, and a bad conduct discharge.  Two previous convictions were considered.

7.  On 5 August 1970, the convening authority approved the sentence.

8.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, General Court-Martial Order Number 265, dated 9 October 1970, stated his sentence had been affirmed and ordered his bad conduct discharge to be executed.  The unexecuted portion of the sentence to confinement was remitted effective 16 October 1970.

9.  On 16 October 1970, the applicant was issued a bad conduct discharge.  He completed 2 years, 5 months, and 25 days of active service.  He had 243 days of lost time prior to his normal expiration of term of service (ETS) and 524 days of lost time subsequent to his normal ETS.

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge.  Chapter 11 stated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and the appellate review must be completed and the affirmed sentence ordered duly executed.

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 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  Army Regulation 635-200 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted at 17 years of age with his parents' consent.  However, he was almost 20 years of age at the time of his first period of AWOL and he had been in the Army for over 2 years.  Therefore, his age was not considered a mitigating factor in this case.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  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.

4.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or achievement that would warrant special recognition.  The applicant's misconduct clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His multiple periods of AWOL shows his service to be unsatisfactory.

5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's bad conduct 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 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)                                         AR20100025159



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ABCMR Record of Proceedings (cont)                                         AR20100025159



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