IN THE CASE OF:	  

		BOARD DATE:	  18 August 2011

		DOCKET NUMBER:  AR20110001122 


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 at least a general discharge.

2.  The applicant states:

* He believes mental problems affected his ability to serve
* He believes he may have been a "project one hundred thousand" and he should have never been in the military
* For 40 years he has struggled with his Vietnam war experiences
* He turned to alcohol and drugs
* He was diagnosed with Post Traumatic Stress Disorder (PTSD)
* PTSD was the reason for his bad behavior
* He attends counseling twice a week
* He needs his discharge upgraded to at least a general discharge so he can get financial aid and medical treatment

3.  The applicant provides:

* His DD Form 214 (Report of Transfer or Discharge)
* His service personnel records
* Four character reference letters
* His medical records
* Orders for awards 


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.  On 26 February 1969, he underwent an enlistment physical examination and he was found qualified for enlistment.  He enlisted in the Regular Army on 
28 February 1969 for a period of 2 years.  He completed his training and he was awarded military occupational specialty 11C (infantry indirect fire crewman).  He served in Vietnam from 29 July 1969 to 25 July 1970.  He attained the rank/grade of specialist four (SP4)/E-4.

3.  On 24 February 1971, he was convicted by a general court-martial of robbery.  He was sentenced to a bad conduct discharge, forfeiture of $90.00 pay per month for 24 months, confinement at hard labor for 24 months, and to be reduced to private (PV1)/E-1.  On 8 April 1971, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 9 months, forfeiture of $90.00 pay per month for
9 months, and reduction to PV1/E-1.  The convening authority deferred the portion of the sentence as provided for confinement and forfeitures until completion of the appellate review with the provision for automatic remission.

4.  On 29 October 1971, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

5.  On 17 January 1972, the convening authority ordered the applicant’s bad conduct discharge be duly executed and remitted the unexecuted sentence to confinement and forfeitures. 

6.  Accordingly, he was discharged with a bad conduct discharge on 6 March 1972 under the provisions of Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharge) for conviction by a general court-martial.  He had served 3 years and 4 days of total active service with 4 days of time lost.
7.  There is no evidence that shows he was diagnosed with PTSD or any mental condition prior to his discharge.

8.  In support of his claim, the applicant provided four character reference letters from his minister, wife, fellow Soldier, and a friend.  They attest the applicant:

* is faithful in his attendance at church
* has challenges as a result of his military experience
* is a good man
* he was diagnosed with PTSD
* has a lot of anger and is withdrawn from family and friends
* is a caring person

9.  Army Regulation 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges.  Paragraph 1b of this regulation states that an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.

10.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.

11.  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.

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.  He contends mental problems affected his ability to serve; however, there is no evidence that shows he was diagnosed with any mental condition prior to his discharge.  There is also no evidence that shows he was having mental problems in 1971/1972 that interfered with his ability to perform his military duties or that this was the underlying cause for the misconduct that led to his discharge.

2.  A discharge is not upgraded for the purpose of obtaining financial assistance or medical treatment.

3.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

4.  Trial by court-martial was warranted by the gravity of the offense 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.

5.  His remaining contentions were carefully considered.  However, his record of service included one general court-martial conviction for robbery and 4 days of time lost.  As a result, his record of service was not satisfactory and he 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 an honorable or a general 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)                                         AR20110001122



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ABCMR Record of Proceedings (cont)                                         AR20110001122



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