IN THE CASE OF:	  

		BOARD DATE:	  12 February 2012

		DOCKET NUMBER:  AR20110015898 


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 to have his bad conduct discharge upgraded. 

2.  The applicant states he was young at the time and he did not know how to cope with military life.  After his tour in Vietnam he could not cope with life.  Every time he returned to his duty station (from being absent without leave (AWOL)) he was informed that he would be going back to Vietnam and could not face another tour there because he had lost a lot of friends there and feared he himself would not survive.  He still has flashbacks and nightmares about combat. 

3.  In support of his request the applicant provided

* six character reference statements
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 20 (Enlisted Qualification Record)
* DD Form 4 (Enlistment Record – Armed Forces of the United States) 
* Several DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))

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 was born on 18 January 1947 and enlisted in the Regular Army at 18 years of age on 24 February 1965.  He held military occupational specialty 12A (Pioneer).   He served in Vietnam from 15 December 1965 to 22 November 1966.

3.  He accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ on/for:

* 10 July 1965 and  22 October 1965, being AWOL
* 16 November 1965, failing to be at his appointed place of duty   
* 15 December 1965, insubordination toward a his superior non-commissioned officer  
* 1 May 1966, breaking medical quarantine
* 12 August 1966, carelessly discharging a round from his M-14 rifle in his squad tent  

4.  On 1 December 1969, a special court-martial (SPCM) convicted the applicant of being AWOL from 7 June 1967 to 24 September 1969.  He was sentenced to a bad conduct discharge, a forfeiture of $80.00 pay per month for 2 months, confinement at hard labor for 2 months, and a reduction to private/E-1.

5.  On 2 December 1969, the sentence was adjudged by the convening authority and approved.  The record of trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review.

6.  On 10 April 1970, the U.S. Army Court of Military Review affirmed the approved findings of guilty and only so much of the sentence as provide for a bad conduct discharge, forfeiture of $80.00 pay per month for 2 months (forfeiture effective 9 January 1970) and a reduction to private/E1 was affirmed.  The portion of the sentence pertaining to confinement at hard labor for 2 months had been served. 

7.  Headquarters, U.S. Army Training Center, Infantry, Fort Dix, NJ, Special Court-Martial Order Number 602, dated 10 April 1970, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

8.  The applicant was discharged from the Army on 11 September 1971 with an under other than honorable conditions discharge.  His DD Form 214 shows he completed a total of 5 months and 15 days of creditable military service and he had 491 days of lost time.

9.  The applicant provides six character reference statements from family and friends who support his request for an upgrade of his BCD and indicate the applicant:

* was a changed man upon his return home from Vietnam
* deserves some benefits for defending his country
* refused in good conscious to serve in an unjust war in Vietnam
* was a great person, friend, and helper of the community and church
* is an excellent human being, well liked, and a great person to be around
* is very hardworking and an outstanding citizen, friend, and father

10.  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.

11.  Army Regulation 635-200 (Personnel Separations) provides for the following characters of service: 

	a.  Paragraph 3-7a states 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 states 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a special court-martial which was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  The applicant was 18 years and 6 days of age at the time of his enlistment.  There is no evidence his offense were caused by his age or that he was any less mature than other Soldiers of the same age who successfully completed their military service.  Likewise, there is no evidence that he suffered from a mental condition that led him to commit his offenses. 

3.  He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.  The fact that he thinks he was young at the time does not negate the fact that he was convicted by a special court-martial or erase his crime.  

4.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20110015898





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ABCMR Record of Proceedings (cont)                                         AR20110015898



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