IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110012425 


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 he was young and used poor judgment.  He contends he became disenchanted with the Army and went home after being denied a tour to Vietnam on three occasions.

3.  The applicant provides a self authored statement, letters of support, and his personnel and medical 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's records show he enlisted in the Regular Army on 5 January 1970 at approximately 19 years and 6 months of age.  He held military occupational specialty 13A (Field Artillery).

3.  On 4 August 1970, while serving as a private first class, he pled guilty and was found guilty by a summary court-martial of being absent without leave (AWOL) from 18 to 30 July 1970.  His sentence consisted of reduction to private (PVT)/E-1, a forfeiture of $85.00 pay for 1 month, and restriction.  No previous convictions were considered.  

4.  A Commander's Inquiry, dated 3 March 1971, states he was assigned to the organization when he returned from a dropped from the rolls (DFR) status.  He went AWOL again on 15 December 1970 and was carried in a DFR status on 
16 December 1970.

5.  Special Orders Number 78, issued by Headquarters, XVIII Airborne Corps and Fort Bragg, NC, dated 22 April 1971, show he was returned to military control on 20 April 1971.

6.  On 9 July 1971, he pled guilty and was found guilty by a special court-martial (SPCM) of being AWOL for the following periods:

* 17 August - 23 November 1970
* 15 December 1970 - 21 April 1971

7.  His punishment consisted of a BCD, confinement at hard labor for 4 months, and a forfeiture of $90.00 pay for 4 months.  One previous conviction was considered.

8.  On 23 August 1971, the convening authority approved the sentence, and the record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review.

9.  On 25 August 1971, SPCM Order Number 123, issued by Headquarters, Fort Bragg, NC, remitted the unexecuted portion of his sentence to confinement at hard labor for 4 months.

10.  Effective 9 September 1971, his request to be placed in an Excess Leave status without pay and allowances pending Appellate Review by the Court of Military Review was approved.  In his initial request he stated that he needed to assist his diabetic mother and pregnant fiancée.  He also stated he had a job waiting for him that would help with the financial difficulties his family was experiencing and the debt he acquired while being AWOL.
11.  On 19 October 1971, SPCM Order Number 136, issued by Headquarters, Fort Bragg, NC, affirmed his sentence.  Further, the provisions of Article 71c of the UCMJ having been complied with, the sentence to a BCD would be duly executed.

12.  His record does not contain a DD Form 214 (Certificate of Release or Discharge from Active Duty), but a National Archives (NA) Form 13038 and Special Orders Number 208, issued by Headquarters, XVIII Airborne Corps and Fort Bragg, dated 28 October 1971, show he was discharged on 29 October 1971 and he received an other than honorable discharge.  

13.  The Army Discharge Review Board denied his request for an upgrade of his discharge and ordered the following corrections:

* On 20 April 1983, he was issued a DD Form 215 (Correction to DD Form 214) which shows the following items were corrected on his DD Form 214:

* Item 11c (Reason and Authority) was changed to show "CH 11 AR 635-200 SPD JJD"
* Item 30 (Remarks) was changed to add "AS A RESULT OF COURT-MARTIAL, OTHER/NOTHING FOLLOWS"

14.  The personal references submitted by the applicant indicate he is well respected in his community and church.  He is patriotic, friendly, and self-motivated.  Further, he is a good friend, husband, father, and citizen.

15.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge.  Chapter 11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and the appellate review must be completed and the affirmed sentence ordered duly executed.

16.  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.

17.  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 contends he was young and immature and he only went AWOL after being denied the opportunity to serve in Vietnam.  The record shows he was approximately 20 years of age at the time of his first offense.  However, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation, or that he requested and was denied the opportunity to serve in Vietnam.

2.  He was discharged after completion of the appellate process and only after his sentence was affirmed by the appropriate appellate court.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  His post-service conduct was noted; however, 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.  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)                                         AR20110012425



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ABCMR Record of Proceedings (cont)                                         AR20110012425



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