BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20100029844 


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 clemency in the form of an upgrade of his bad conduct discharge to a general discharge.

2.  The applicant states, in effect, that he was a good Soldier with good intentions.  Soon after arriving in the Republic of Vietnam (RVN) he began to have problems with his wife and he went home on leave.  He returned to the RVN and reenlisted for another assignment to get out of the field.  Once again, he went home and waited for assignment orders only to receive orders assigning him back to his previous unit.  He states that he did not go back to the RVN because he could not handle being back in the field.  While at home, he went back to his old job.  After divorcing his wife, he turned himself in to military authorities.

3.  He provides:

* a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 6 March 1972
* a DD Form 256A (Honorable Discharge Certificate), dated 11 October 1969
* an Army Commendation Medal Certificate
* a DD Form 259A (Bad Conduct Discharge Certificate), dated 6 March 1972
* a U.S. Department of Labor Exemplary Rehabilitation Certificate, dated 
22 February 1982

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 was inducted into the Army of the United States on 7 January 1969.  He successfully completed the training requirements and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 2 June 1969, he arrived in the RVN and was assigned to D Company, 1st Battalion, 18th Infantry, 1st Infantry Division.  On 11 October 1969, he was honorably discharged for the purpose of immediate reenlistment on 12 October 1969.  His DD Form 214 shows that he was awarded the National Defense Service Medal, Vietnam Service Medal, and Combat Infantryman Badge.

4.  On 22 April 1971, he was convicted in accordance with his pleas by a special court-martial (SPCM) of being absent without leave (AWOL) for the period 
23 November 1969 through 3 March 1971.  His approved sentence consisted of reduction to E-1, a forfeiture of $95.00 pay for 6 months, confinement at hard labor for 60 days, and a bad conduct discharge.

5.  The affirmation of the U.S. Army Court of Military Review (ACMR) is not available.  Headquarters, U.S. Army Engineer Center and Fort Belvoir Special Court-Martial Order Number 16, dated 2 February 1972, shows the ACMR affirmed the finding of guilty and the sentence.

6.  On 6 March 1972, the applicant received a bad conduct discharge under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) by reason of court-martial.  He had completed a total of 1 year, 7 months, and 7 days of creditable active military service with 546 days of lost time due to being AWOL and in confinement.


7.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 24 October 1985, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that his service was properly characterized.

8.  Army Regulation 635-200, paragraph 11-2, provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

9.  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.

10.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be used for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by an SPCM which was warranted by the gravity of the offense charged.  The conviction and discharge action were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  It is acknowledged that he served honorably during his first term of service.  However, his first term of service, conduct, and achievements alone are not a basis for upgrading a discharge on a second enlistment.  

3.  The applicant was given a bad conduct discharge pursuant to an approved sentence of an SPCM.  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.  Given the seriousness of the offenses for which he was convicted, there is insufficient basis to warrant the relief requested.

4.  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)                                         AR20100029844



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ABCMR Record of Proceedings (cont)                                         AR20100029844



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