IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100029942


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 an honorable or a general discharge.

2.  The applicant states there is no error; however, he prays the Board will grant his request.  He is experiencing medical problems related to Agent Orange exposure and he needs help.

3.  The applicant further states:

* he was a young man from a small town and a simple life
* on 19 January 1970, he raised his right hand and made a promise to his country
* he went to Vietnam and has suffered painful memories ever since
* the things he experienced in Vietnam were beyond imagination and led him to participate in things unbecoming a Soldier in order to escape from reality
* he makes no excuses; he only says he has fought battles within himself for 40 years, and he begs forgiveness
* he has a little girl now and he needs help

4.  The applicant provides:

* a self-authored statement


* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* pages 1 and 2 of his DA Form 20 (Enlisted Qualification Record)
* Medical College of Georgia (MCG) patient records

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 19 January 1970.  He received Basic Combat Training at Fort Jackson, SC, and Advanced Individual Training at Fort Gordon, GA.  Following training, he was awarded military occupational specialty (MOS) 36K (Lineman) and he was transferred to Vietnam.

3.  The applicant arrived in Vietnam on or about 26 July 1970.  He was assigned to the 589th Signal Company.

4.  The applicant's records are incomplete; however, it appears he was tried before a special court-martial (SPCM) empowered to adjudge a bad conduct discharge at Headquarters, U.S. Army Support Command, Qui Nhon, Vietnam, on 10 May 1971.  He was convicted and sentenced to a bad conduct discharge, confinement at hard labor for 3 months, forfeiture of $65.00 pay per month for 5 months, and reduction to the grade of private (E-1).  Medical documents show he received treatment at the 332nd General Dispensary, confirming he served his sentence to confinement at the U.S. Army Vietnam Installation Stockade, Long Binh.

5.  Orders show the applicant was supposed to be transferred from Vietnam to Fort Lewis, WA in September 1971 for the purpose of discharge.  He was to be placed on excess leave without pay awaiting approval of his bad conduct discharge.


6.  On 15 March 1972, the U.S. Army Court of Military Review, Washington, D.C., affirmed the findings and sentence in the applicant's SPCM.  The applicant was so advised on 28 March 1972.

7.  Special Court-Martial Order Number 3, issued by Headquarters, U.S. Army Training Center, Infantry, Fort Jackson, SC, dated 29 March 1972, ordered the applicant's bad conduct discharge executed.

8.  The applicant was accordingly discharged on 4 April 1972 with a bad conduct discharge.

9.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 (Dishonorable and Bad Conduct Discharge) provides 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.

11.  Army Regulation 635-200 further states in:

	a.  paragraph 3-7a, 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.

	b.  paragraph 3-7b, that a general discharge (GD) 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 HD.  

12.  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 in Vietnam and sentenced, in part, to a bad conduct discharge.  The nature of the offense(s) is not known.

2.  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 absence of any mitigating factors, the type of discharge directed and the reasons is presumed to have been appropriate.  As a result, clemency is not warranted in this case.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

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)                                         AR20100029942



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ABCMR Record of Proceedings (cont)                                         AR20100029942



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