IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100027051 


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.

2.  The applicant states:

* He served honorably during the time he was in the Army
* He accepted his punishment, confinement, and temporary forfeiture of pay
* He believes it is unjust to withhold Veterans Affairs (VA) benefits
* He is currently suffering from a terminal illness and he is in need of financial support
 
3.  The applicant provides:

* Special Court-Martial Order Number 5, dated 29 January 1974
* DD Form 214 (Report of Separation from Active Duty)
 
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 was inducted into the Army of the United States on 12 December 1968.  He completed his training and was awarded military occupational specialty 11B (light weapons infantryman).  He served in Korea and was honorably discharged on 17 July 1970.  He enlisted in the Regular Army on 7 September 1971 for a period of 3 years.  He arrived in Vietnam on 11 September 1971.

3.  On 9 April 1972, while in Vietnam, nonjudicial punishment (NJP) was imposed against the applicant for absenting himself from his place of duty.

4.  He departed Vietnam on 15 May 1972.

5.  On 11 September 1972, NJP was imposed against the applicant for being absent without leave (AWOL) from 14 July 1972 to 8 September 1972.

6.  On 16 July 1973, he was convicted by a special court-martial of three specifications of being AWOL (from 26 March 1973 to 28 March 1973, 19 April 1973 to 30 April 1973, and 7 May 1973 to 1 June 1973) and attempting to escape from custody.  He was sentenced to be discharged from the service with a bad conduct discharge, to forfeit $150.00 pay per month for 2 months, to be confined at hard labor for 1 month, and to be reduced to E-1.  On 7 September 1973, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 1 month, and forfeiture of $150.00 pay per month for 2 months.

7.  On 9 January 1974, the U.S. Army Court of Military Review affirmed the findings of guilty and sentence.

8.  On 29 January 1974, the convening authority ordered the bad conduct discharge to be executed.

9.  He was discharged with a bad conduct discharge on 11 March 1974 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, as a result of court-martial.  He had served 3 years, 7 months, and 10 days of creditable active service with 182 days of lost time.




10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, 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.

11.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  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.  A discharge is not changed for the purpose of obtaining VA benefits.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  He contends he served honorably during the time he was in the Army.  However, his record of service during his last enlistment included two NJPs, one special court-martial conviction, and 182 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable 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 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)                                         AR20100027051





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ABCMR Record of Proceedings (cont)                                         AR20100027051



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