IN THE CASE OF:	  

		BOARD DATE:  20 March 2012

		DOCKET NUMBER:  AR20110017782


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, upgrade of his Bad Conduct Discharge (BCD).

2.  The applicant states, in effect, that his discharge was wrong, and he should have received nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), instead of being court-martialed.  He chronicles his combat experiences in the Republic of Vietnam, and he believes his discharge was unjust, unfair, too severe, and should be upgraded so he can gain eligibility for benefits through the Department of Veterans Affairs (VA).

3.  The applicant provides his 9-page diary of hand-written notes that chronicle his combat experiences in the Republic of Vietnam. 
  
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 29 December 1966.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  On 29 April 1967, he received NJP under the provisions of Article 15, UCMJ, for unlawfully striking a fellow Soldier on the head with an M-14 rifle on 24 April 1967.

4.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from on or about 30 June 1967 through an unspecified date.

5.  On 7 September 1967, while serving in the Republic of Vietnam, he received NJP under the provisions of Article 15, UCMJ, for absenting himself from his unit on 31 August 1967.

6.  At a general court-martial at the Headquarters, 1st Infantry Division, Republic of Vietnam, he pled not guilty to:

   a. A single specification of Charge I – failure to obey a lawful order on          19 November 1967;

   b. A single specification of Charge II – endangering the safety of the patrol, for which he was a member, by 1) disobeying the direct order of a superior noncommissioned officer (NCO), and 2) striking said NCO numerous times with a service rifle, thereby inflicting injuries which diminished the NCO's ability to perform his own duties as squad leader on 19 November 1967; 

   c. A single specification of Charge III – assaulting an NCO by willfully and unlawfully beating him about the head and body with a service rifle on               19 November 1967; and 

   d. A single specification of Charge IV – willfully disobeying a lawful command on 19 November 1967. 

7.  On 13 January 1968, the Court found him guilty of all specifications and Charges, and sentenced him to confinement at hard labor for 6 months, forfeiture of all pay and allowances, and to be discharged from the service with a BCD.

8.  On 27 February 1968, the convening authority approved the sentence and, except for the BCD, ordered it duly executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

9.  General Court-Martial Order 26, Headquarters, 6th U.S. Army, Presidio of San Francisco, CA, dated 18 July 1968, restored him to duty at the expiration of his sentence to hard labor, pending the completion of the appellate review.  

10.  The U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

11.  General Court-Martial Order Number 29, Headquarters, 6th U.S. Army, Presidio of San Francisco, CA, dated 1 August 1968, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the sentence, including the BCD, be duly executed.

12.  On 13 August 1968, he was discharged in accordance with the provisions of Army Regulation 635-204 (Personnel Separations – Dishonorable and Bad Conduct Discharges).  His DD Form 214 shows he was discharged with an under other than honorable character of service.  The highest rank/grade he attained while serving on active duty was private first class/E-3.

13.  He provides his 9-page diary of hand-written notes that chronicle his combat experiences in the Republic of Vietnam, in which he recounts certain combat experiences and relates his version of the events that led to his court-martial conviction.

14.  Army Regulation 635-204, in effect at the time, and Army Regulation        635-200 (Active Duty Enlisted Administrative Separations), currently in effect,   set forth the basic authority for the separation of enlisted personnel as a result of court-martial.  These regulations provide that an enlisted person would/will receive a BCD pursuant only to an approved sentence of a court-martial imposing a BCD.  The appellate review must be completed and the affirmed sentence ordered duly executed.

   a. Army Regulation 635-200, paragraph 3-7a, defines an honorable discharge as a separation from the Army 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 meets 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. Army Regulation 635-200, paragraph 3-7b, defines a general discharge as 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.  

15.  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 was given a bad conduct discharge pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offenses charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.  

2.  All requirements of law and regulation were met and his rights were fully protected.  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.  In view of the foregoing, there is an insufficient basis to grant relief.

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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20110017782



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