IN THE CASE OF:	  

		BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110021986 


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 that his Bad Conduct Discharge (BCD) discharge be upgraded to a general discharge.

2.  The applicant states that during his tour in Vietnam he was promoted to the rank of sergeant; however, when he arrived at Fort Carson, Colorado he was told by the admin chief that he had not earned the rank of sergeant and crossed it off his records.  He goes on to state that he took leave and went to Ohio and found that his wife and kids did not have a home and that his wife had been raped.  He further states that he loaded up his family and headed to Colorado but his car broke down in Indiana and once he had it repaired he returned to Ohio and found a job to support his family.  He also states that he was mad about his rank, his family situation and the fact that everything he tried was not working for him.  However, he now knows that he should have handled things differently.

3.  The applicant provides a one-page letter explaining his application, four third party statements of support, copies of two DD Forms 214 (Report of Separation from Active Duty), two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), and copies of documents from his military 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 enlisted in the Regular Army in Cleveland, Ohio on 19 June 1967 for a period of 3 years.  He completed basic training at Fort Knox, Kentucky and advanced individual training as a light weapons infantryman at Fort Ord, California and he was assigned to Fort Lewis, Washington for his first duty assignment.

3.  On 5 April 1968, he was transferred to Vietnam with his unit.  On 4 September 1968 he was honorably discharged for the purpose of immediate reenlistment.

4.  On 5 September 1968, he reenlisted in the pay grade of E-3 for a period of 3 years and duty as a wrecker operator.  He was advanced to the pay grade of E-4 on 17 October 1968.  He departed Vietnam in the pay grade of E-4 on 5 May 1969 for assignment to Fort Carson, Colorado.

5.  On 19 June 1969, he reported to Fort Carson and in August 1969 he applied for drill sergeant training which was approved.  He was advanced to the rank of sergeant/E-5 on 5 September 1969 for the purpose of attending Drill Sergeant School and orders were published transferring him to Fort Leonard Wood, Missouri to attend drill sergeant training on 24 October 1969. 

6.  Although not explained in the available records, the applicant returned to Fort Carson on 3 December 1969 and he was assigned to a different unit.  His promotion orders for pay grade of E-5 were also revoked.

7.  On 27 February 1970, he was convicted by a special court-martial of being absent without leave (AWOL) from 10 January to 2 February 1970.  He was reduced to the pay grade of E-2.

8.  On 6 May 1970, he again went AWOL and he remained absent in a desertion status until he was apprehended by civil authorities in Cleveland, Ohio on
29 November 1973 and returned to military control at Fort Knox, Kentucky where charges were preferred against him for the unauthorized absence.

9.  On 28 January 1974, he was convicted by a special court-martial of being AWOL from 6 May 1970 to 29 November 1973.  He was sentenced to confinement at hard labor for 30 days, reduction to the pay grade of E-1 and a BCD.

10.  On 30 September 1974, the U.S. Army Court of Military Review affirmed the findings and sentence approved by the convening authority.

11.  On 22 January 1975, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 3 years, 8 months, and 27 days of total active service with 900 days of lost time due to being AWOL and in confinement.

12.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  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.

14.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.  

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

2.  The applicant’s contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense.

3.  Accordingly, his punishment was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.  

4.  Any redress by the ABCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and 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)                                         AR20110021986



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ABCMR Record of Proceedings (cont)                                         AR20110021986



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