IN THE CASE OF:	  

		BOARD DATE:	   6 September 2011

		DOCKET NUMBER:  AR20100030541 


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 bad conduct discharge (BCD) to a general discharge. 

2.  The applicant states that he thought he was in the early stages of post-traumatic stress disorder.  While serving in Vietnam he was a compulsive youth of 19 and he got involved with drugs.  Heroin was one of the leading factors for him going absent with leave (AWOL).  He is not proud of his actions in 1969 and he regretted it most of his life.  He further stated that he is simply asking to be pardoned for a past mistake in his life of almost 40 years ago. 

3.  The applicant provides a self-authored letter and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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.  The applicant enlisted in the Regular Army on 26 February 1968 for a period of 3 years.  Records show the applicant was 18 years of age at the time of enlistment.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty 68F (Aircraft Electrician).  The highest rank the applicant attained was private first class/pay grade E-3.

3.  On 19 June 1969, the applicant received nonjudical punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a regulation.  His punishment consisted of reduction to the grade of private/pay grade E-2 and 14 days extra duty. 

4.  On 27 March 1970, the applicant was convicted by a special court-martial of desertion from 1 August 1969 until he was apprehended on or about 6 February 1970.  He was sentenced to a reduction to the grade of private/pay grade E-1, forfeiture of $80.00  per month for a period of six months, confinement at hard labor for a period of six months, and a BCD.  The convening authority approved the sentence but that portion of the sentence pertaining to confinement at hard labor for six months that was in excess of confinement at hard labor for four months was suspended for six months.  He also ordered the record of trial forwarded to The Judge Advocate General of the Army for appellate review and ordered him retained in the command. 

5.  The U.S. Army Court of Military Review affirmed the findings and sentence on 2 September 1970.

6.  He was discharged accordingly on 16 December 1970.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-204 (Personnel Separations – Enlisted Personnel) as a result of conviction by court-martial.  The discharge was characterized as under conditions other than honorable.

7.  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.

8.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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 635-5, Separation Documents, dated 23 January 1967, paragraph 34 indicates that “Bad Conduct” was not an authorized characterization for entry into block 13a at the time of applicant’s discharge.  “Under Conditions Other Than Honorable” was the term used for a BCD and for some administrative discharges in that time period. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms 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. 

2.  The applicant's contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his otherwise undistinguished record of 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)                                         AR20100030541





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100030541



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1