BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110024198 


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 (BCD).

2.  The applicant states he felt that he was not given fair representation prior to his special court-martial (SPCM) or treated fairly by his command.

3.  In his self-authored statement he describes the blows he received to his head which caused a tumor that was removed by radiation treatment.  He informed military personnel of his medical history at the recruiting station.  He further describes incidents that occurred while he attended advanced individual training (AIT) and during his service in the Republic of Vietnam (RVN).  He felt his BCD was unfair because he joined the Army of his own free will and because he was not fairly represented before trial.

4.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Self-authored statement
* Certificate of Ordination
* Three letters of support 





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 25 June 1969, and was trained in and awarded military occupational specialty 11C (Indirect Fire Infantryman). 

3.  The applicant served in the RVN from 26 November 1969 to 2 December 1970.

4.  The applicant's DD Form 214 shows the following awards:

* Vietnam Service Medal
* Combat Infantryman Badge
* RVN Campaign Medal
* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-14 and  M-16)

5.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following:

	a.  11 September 1969, for being absent without leave (AWOL) from 9 September 1969 to 11 September 1969;

	b.  24 February 1970, for sleeping on his post;

   c.  10 March 1970, for being AWOL from 3 March 1970 to 9 March 1970, and from 10 March 1970 to 11 March 1970; 
   
d.  6 April 1970, for being absent from his appointed place of duty on 4 April 1970; and
   
   e.  30 August 1970, for failure to go to his appointed place of duty on 28 August 1970 and on 29 August 1970.

6.  On 5 May 1970, an SPCM found the applicant guilty of being AWOL from 10 April 1970 to 18 April 1970.  The resulting sentence was a confinement at hard labor for 2 months and reduction to Private/E-1.  The sentence was approved on 13 May 1970.

7.  On 2 October 1970, an SPCM found the applicant guilty of violating Article 90 (failure to obey a lawful command from his commissioned officer) and Article 91 (failure to obey a lawful command from a superior noncommissioned officer) under the UCMJ on three occasions.  The resulting sentence was a BCD, confinement at hard labor for 4 months, and a forfeiture of pay.  The sentence was approved on 13 November 1970. 

8.  On 23 April 1971, the U.S. Army Court of Military Review affirmed the guilty findings and only so much of the sentence that provided for a BCD, confinement at hard labor for 4 months, and a forfeiture of pay.

9.  On 9 July 1971, Headquarters, U.S. Army, Fort George G. Meade, Maryland, SPCM Order Number 13 directed that Article 71c having been complied with, the sentence be duly executed.

10.  On 20 October 1971, the applicant was discharged under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations), by reason of court-martial with a BCD.  The DD Form 214 he was issued shows he completed a total of 1 year, 10 months, and 25 days of creditable active military service and had accrued 153 days of lost time due to AWOL and confinement.

11.  The applicant provides several documents showing his post-service accomplishments.

12.  On 4 December 1980, the Army Discharge Review Board reviewed his discharge and found it equitable and proper.  Accordingly, it denied his petition for an upgrade of this discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of the version of regulation in effect at the time 

prescribed the policies and procedures for separating members with a dishonorable or BCD.  It stipulated that a Soldier would be given a BCD pursuant only to an approved sentence of a general court-martial or SPCM and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

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 alleges that he was not provided with fair representation prior to his SPCM or treated fairly by his command; however, there is no evidence and the applicant has provided none to support his allegations.

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ 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.

3.  Although the applicant generally performed well in combat, his record reveals an extensive disciplinary history that extends from 1969 through his discharge in 1971.  This history includes accepting NJP on five occasions and two SPCM convictions.

4.  The applicant’s character references provided by the applicant documenting his good character, potential, and post-service conduct are noteworthy.  However, they alone are not sufficiently mitigation to support an upgrade of his BCD.

5.  The evidence reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.  Therefore, given his extensive disciplinary history and the gravity of the offense resulting in his court-martial conviction and BCD, his overall record of service is not sufficiently meritorious to support clemency and/or an upgrade of his discharge.



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)                                         AR20110024198



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ABCMR Record of Proceedings (cont)                                         AR20110024198



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