IN THE CASE OF:	  

		BOARD DATE:	  15 December 2012

		DOCKET NUMBER:  AR20110011119 


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, in effect, an upgrade of his bad conduct discharge (BCD).

2.  He states that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) only lists his Article 15, no court-martial, and no assignments.  His memory is very terrible and he can't remember and needs help.  He is suffering from Post Traumatic Stress Disorder (PTSD).

3.  He provides:

* VA Form 21-22 (Department of Veterans Affairs - Appointment of Veterans Service Organization as Claimant's Representative)
* VA Form 21-4138 (Statement in Support of Claim) completed by an individual who knew the applicant in 1969

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's record shows he enlisted in the Regular Army, in pay grade 
E-1, on 22 October 1968, for 2 years.  He completed training and was awarded military occupational specialty 57A (Duty Soldier).  There is no evidence he served in the Republic of Vietnam.

3.  On 24 February 1969, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Justice (UCMJ), for absenting himself from his unit from 14 to 19 February 1969.

4.  He was advanced to pay grade E-2 on 21 March 1969.

5.  On 10 June 1969, he accepted NJP under Article 15, UCMJ, for absenting himself from his unit from 2 to 10 June 1969.

6.  On 15 October 1969, he was convicted by a summary court-martial of absenting himself from his unit from 2 to 30 September 1969.  He was sentenced to a reduction to pay grade E-1, a forfeiture of $30.00 pay per month for 1 months, and 45 days hard labor without confinement.  

7.  He was again advanced to pay grade E-2, on 15 January 1970.

8.  He was dropped from the rolls of his organization on 23 November 1970.

9.  On 18 January 1971, he was convicted by a general court-martial of three specifications of absenting himself from his unit, from 12 February 1970 through 16 November 1970, 21 November 1970 through 8 December 1970, and from 12 through 16 December 1970.  He was sentenced to a reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement at hard labor for 10 months, and to be discharged from the Army with a BCD.  He was placed in confinement on 16 February 1971.

10.  On 4 February 1971, the convening authority approved the sentence of a BCD, confinement at hard labor for 9 months, forfeiture of $50.00 pay per month for 9 months, and reduction to pay grade E-1.  The record of trial was forwarded to the U.S. Army Court of Military Review.

11.  On an unspecified date, the U.S. Army Court of Military Review approved and affirmed the findings and sentence.
12.  There is no evidence he petitioned the U.S. Army Court of Military Appeals within the allotted timeframe.

13.  He was discharged in pay grade E-1 on 22 June 1971, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-1b, as a result of a general court-martial, with a character of service of under conditions other than honorable.  He was credited with completing 1 year, 2 months, and 6 days of net active service and had 313 days of time lost.

14.  He provided a VA Form 21-4138 wherein the individual stated that he had grown up with and went to the school with the applicant.  He and the applicant went to basic training together.  The applicant went to Vietnam first.  He arrived in Vietnam later and they lost contact.  The last he heard was about the applicant getting an Article 15 for disobeying a direct order when he picked up a crying Vietnamese child during clean-up.  When he saw the applicant in 2008, he noticed the applicant had the worst case of PTSD, failing health, and was somewhat combative and hated authority figures.  He requested, in effect, the applicant's discharge be upgraded to a more favorable discharge so the applicant can get some help.  He feels the applicant's exposure had a significant impact on who the applicant is today.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11, paragraph 11-1b, stated an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must have been completed and the sentence affirmed before it could be duly executed.

16.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

18.  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 change a court-martial 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 evidence of record shows the applicant was convicted by a summary court-martial and a general court-martial of absenting himself from his unit for a total of 313 days of time lost.  He was discharged pursuant to the sentence of a general court-martial and was issued a BCD after the findings and sentence were affirmed.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

2.  He has not shown that was suffering from PTSD at the time and that this contributed to his misconduct and the imposition of the BCD.  Further, there is no evidence he could not appreciate the wrongfulness of his conduct or conform his behavior to the law’s requirements.  There is also no evidence that his treatment was unjust or inequitable.  He has provided no evidence or argument sufficient to show his discharge should be upgraded.  He was properly discharged and the discharge appropriately characterized the misconduct for which he was convicted.

3.  The Board is empowered to change the characterization of service and the narrative reason for discharge if clemency is determined to be appropriate.  The applicant's record contains no documented evidence of acts of valor or achievement warranting special recognition for clemency and an upgrade of his discharge.  Given the above and after a thorough review of the applicant’s record and the serious nature of his offenses, there is no basis for clemency.

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)                                         AR20110011119





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110011119



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1