IN THE CASE OF:	  

		BOARD DATE:	  17 May 2012

		DOCKET NUMBER:  AR20110023339 


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 an upgrade of his bad conduct discharge to honorable.

2.  The applicant states:

* he feels he was a target for failure
* he was in Vietnam prior to his tour in Germany
* the discrimination started shortly after his arrival in Germany
* he was sent to school for section chief
* he received a promotion and demotion at the same time with laughter from his superiors
* he is a Vietnam veteran
* he feels his court-martial was unjust and a lot of the charges were bogus
* he has been a good citizen

3.  The applicant provides DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 13 March 1969 and 20 July 1971.

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 8 August 1967.  He completed training and was awarded military occupational specialty 13A (field artillery basic crewman).  He served in Vietnam from 1 February 1968 to 1 March 1969.  On 13 March 1969, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.

3.  He then enlisted in the Regular Army on 8 October 1969 for a period of 3 years.  He arrived in Germany on 23 November 1969.

4.  On 20 March 1970, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 14 March 1970 to 16 March 1970.

5.  On 8 December 1970, NJP was imposed against the applicant for behaving with disrespect toward a superior commissioned officer and missing formation (two specifications).

6.  On 21 January 1971, NJP was imposed against the applicant for leaving his appointed place of duty with the intent to shirk duty.

7.  On 17 March 1971 in accordance with his pleas, he was convicted by a special court-martial of failing to go at the prescribed time to his appointed place of duty (four specifications), assaulting a sergeant by striking him with his fist, and using disrespectful language.  He was sentenced to a bad conduct discharge, confinement at hard labor for 30 days, and reduction to private/E-1.  On 31 March 1971, the convening authority approved the sentence, but suspended the confinement for 6 months.

8.  On 22 June 1971, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

9.  On 8 July 1971, the convening authority ordered the applicant's bad conduct discharge duly executed.

10.  He was transferred to the United States on 20 July 1971 and discharged with under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of conviction by a special court-martial.  He completed a total 3 years, 11 months, and 13 days of total active service during this period with 2 days of lost time.

11.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11, in effect at the time, stated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

12.  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.

13.  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.

14.  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 contends the discrimination started shortly after his arrival in Germany.  However, there is no evidence of record that shows he was a victim of discrimination.

2.  His contention that the court-martial charges were bogus relates to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the special court-martial process.  Also, he pled guilty to all charges.

3.  He also contends he has been a good citizen.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  Trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

5.  His record of service during his last enlistment included three NJPs, one special court-martial conviction, and 2 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

6.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board 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 were therefore appropriate.  As a result, clemency is not warranted in this case.

7.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20110023339



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ABCMR Record of Proceedings (cont)                                         AR20110023339



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