IN THE CASE OF:	  

		BOARD DATE:	  26 July 2012

		DOCKET NUMBER:  AR20110022304 


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) be upgraded to a general discharge.

2.  The applicant states he had just returned from the Republic of Vietnam (RVN) and he believes he was suffering from Post-Traumatic Stress Disorder (PTSD) at the time of the incident.

3.  The applicant provides no additional documentation in support of this case.

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 was inducted into the Army of the United States on 27 February 1968.  He successfully completed training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

3.  On 26 May 1970, the applicant was convicted by a general court-martial of involuntary manslaughter and being absent without leave (AWOL) for the period 9 through 25 January 1970.  His sentence consisted of a forfeiture of all pay and allowances, confinement at hard labor for 3 years, and a BCD.

4.  On 5 August 1971, the U.S. Army Court of Military Review considered the applicant's appeal and found that the findings and sentence were correct in law and fact and affirmed the findings.  The court reviewed the sentence and affirmed only so much of the sentence as provided for a forfeiture of pay and allowances, confinement at hard labor for 2 years and 6 months, and a BCD.

5.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 1446, dated 29 November 1971, directed that the bad conduct discharge be executed.

6.  On 15 December 1971, the applicant was discharged from the Army with a BCD under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 11-1b by reason of court-martial.  He completed 1 year, 10 months, and 12 days of creditable active service with 45 days of time lost due to being AWOL and in confinement.

7.  There is no evidence in the applicant's available records which show he was diagnosed or treated for PTSD or any other mental condition. 

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  At that time chapter 11 provided policy for the separation of members with a dishonorable or bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  It stated that discharge would be accomplished only after the completion of the appellate process and affirmation of the court-martial findings and sentence.

9.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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.  

11.  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 by a court-martial convened under the UCMJ.  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 that he suffered from PTSD and that PTSD was the reason for his court-martial.  However, there is no evidence and the applicant has not provided evidence that shows he suffered from PTSD or that any mental disorder was the cause of his problems while serving in the military.  He could have raised this issue during his trial or appellate process.

2.  The evidence of record confirms that the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  By law, the ABCMR may not disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

4.  The applicant's entire record of service was considered in this case.  However, given the seriousness of the offenses for which he was convicted, it is determined that his service was not sufficiently meritorious or mitigating to warrant the relief requested.





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)                                         AR20110022304



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ABCMR Record of Proceedings (cont)                                         AR20110022304



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