IN THE CASE OF:	  

		BOARD DATE:	    6 March 2012

		DOCKET NUMBER:  AR20110018094 


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 reconsideration of his earlier request for an upgrade of his bad conduct discharge. 

2.  The applicant states he would like to receive Department of Veterans Affairs medical benefits.

3.  The applicant provides a General Power of Attorney and three third-party letters.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100000702 on 20 July 2010.

2.  The applicant did not submit his request for reconsideration within 1 year of the Board's original decision.  However, he now submits three third-party letters of support which were not previously reviewed by the ABCMR.  Therefore, they are considered new evidence and warrant consideration by the Board as an exception to policy.

3.  The applicant's records show he enlisted in the Regular Army for a period of 2 years on 7 July 1969 and held military occupational specialty 12A (Pioneer).  The highest rank/grade he attained during his military service was private first class/E-3.

4.  He served in Vietnam from 14 December 1969 to 16 November 1970.  He was awarded or authorized the Vietnam Service Medal and the Vietnam Campaign Medal with Device (1960).

5.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 10 March 1970 for willfully disobeying a lawful order
* 13 April 1970 for willfully disobeying a lawful order
* 21 May 1970 for willfully disobeying a lawful order
* 13 August 1970 for missing unit movement to a fire support base
* 14 September 1970 for leaving his appointed place of duty without authority and disobeying a lawful order
* 19 February 1971 for violating a general regulation and willfully disobeying a lawful order
* 17 March 1971 for twice absenting himself from his appointed place of duty and disobeying a lawful order
* 8 April 1971 for being absent without leave (AWOL) from 31 March to 6 April 1971
* 4 May 1971 for absenting himself from his appointed place of duty

6.  On 21 May 1971, he was convicted by a special court-martial of one specification of AWOL from 9 to 13 April 1971, one specification of larceny, and one specification of unlawful entry with intent to commit larceny.  The court sentenced him to a forfeiture of $90.00 pay per month for 6 months, confinement at hard labor for 6 months, and a bad conduct discharge.

7.  On 3 June 1971, the convening authority approved so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 4 months, and forfeiture of $90.00 pay per month for 4 months.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

8.  He accepted more NJP under the provisions of Article 15 of the UCMJ on:

* 13 July 1971 for being AWOL from 21 May to 4 June 1971
* 4 November 1971 for being AWOL on 1 October 1971, 12 October 1971, and 25 October 1971

9.  On 8 November 1971, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

10.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, Special Court-Martial Order Number 20, dated 16 December 1971, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

11.  He was discharged on 12 January 1972.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged as a result of court-martial in accordance with Army Regulation 635-200 (Personnel Separations) with an under other than honorable conditions character of service.  This form further shows he completed a total of 2 years and 27 days of creditable military service and he had 165 days of lost time.

12.  On 28 March 1974, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

13.  On 20 July 2010, the ABCMR denied his request for an upgrade of his discharge.

14.  He submitted three third-party letters of support from individuals who state the applicant suffers from serious health problems and he lives on a low income. 
The authors appeal to this Board for assistance.

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.

16.  Army Regulation 635-200, 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.

17.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a special court-martial was warranted by the gravity of the offenses charged.  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.

2.  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 with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

3.  In addition to the court-martial conviction, his record of service included an extensive history of NJP for various infractions that spanned throughout his entire military service.  As a result, his service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable discharge or a general discharge is not warranted in this case.  He is not entitled to the requested 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 the overall merits of this case are 

insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100000702, dated 20 July 2010.



      _______ _   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)                                         AR20110018094



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ABCMR Record of Proceedings (cont)                                         AR20110018094



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