IN THE CASE OF:	  

		BOARD DATE:	  26 FEBRUARY 2009

		DOCKET NUMBER:  AR20080018326 


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, in effect, upgrade of the character of service of his discharge.

2.  The applicant states, in effect, he respectfully requests that his discharge be upgraded due to the injustice created during the Vietnam-era and the feelings of the people of the United States at that time.

3.  The applicant provides no additional documentary evidence.

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’s military personnel records show he enlisted in the Regular Army and entered active duty for a period of 3 years on 17 November 1967.  Upon completion of basic combat and advanced individual training, the applicant was issued orders to report to the U.S. Army Overseas Replacement Station, Fort Dix, New Jersey for assignment overseas to Germany.

3.  The applicant’s military personnel records contain a DA Form 20 (Enlisted Qualification Record).  Item 44 (Time Lost Under Section 972, Title 10, United States Code (USC) and Subsequent to Normal Date ETS [Expiration Term of Service]) shows the applicant was absent without leave (AWOL) for 75 days from 4 March to 17 May 1968; confined by military authorities (CMA) for 88 days from
18 May to 13 August 1968; AWOL for 6 days from 15 August to 20 August 1968; CMA for 17 days from 21 August to 6 September 1968; AWOL for 500 days from
28 September 1968 to 9 February 1970; confined by civil authorities (CCA) for
1 day on 10 February 1970; CMA for 43 days from 11 February to 25 March 1970; AWOL for 17 days from 28 March to 13 April 1970; and CMA for 336 days from 14 April 1970 to 15 March 1971.

4.  The applicant’s military personnel records contain a copy of Headquarters,
Fort McPherson Troop Command, Fort McPherson, Georgia, Special Court-Martial Order Number 786, dated 24 June 1968, that shows the applicant was charged with violation of the Uniform Code of Military Justice (UCMJ), Article 86, with the Specification that the applicant did, on or about 4 March 1968, without proper authority, absent himself from his unit, to wit:  Company N, 3rd Battalion, U.S. Army Ordnance Center and School, located at Aberdeen Proving Grounds, Maryland, and did remain so absent until on or about 18 May 1968.  This document also shows the applicant entered a plea of guilty and was found guilty.

     a.  On 11 June 1968, sentence was adjudged.  The applicant’s sentence was to be confined at hard labor for four months and to forfeit $70.00 per month for four months.  (No previous convictions considered.)

     b.  On 24 June 1968, the convening authority approved only so much of the sentence as provides for confinement at hard labor for four months and forfeiture of $68.00 per month for four months, and ordered the sentence duly executed.

5.  The applicant’s military personnel records contain a copy of Headquarters,
Fort McPherson Troop Command, Fort McPherson, Special Court-Martial Order Number 945, dated 13 August 1968.  This document shows, in pertinent part, the unexecuted portion of the applicant's sentence to confinement at hard labor for four months was suspended until 13 December 1968, at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence was to be remitted without further action.
6.  The applicant's military personnel records contain a copy of Headquarters, Special Processing Detachment, U.S. Army Garrison, Fort McPherson, Unit Orders Number 2, dated 28 March 1969.  This document shows, in pertinent part, under the provisions of UCMJ, Article 15, effective 6 September 1968, the applicant was to forfeit $20.00 per month for one month based on misconduct.

7.  The applicant’s military personnel records contain a “Corrected Copy” of Headquarters, Third United States Army, Fort McPherson, General Court-Martial Order Number 26, dated 27 July 1970, which documents the following charge and specifications, pleas, and findings:

     a.  violation of UCMJ, Article 86 with the Specification that the applicant did on or about 28 September 1968, without authority, absent himself from his unit, to wit:  U.S. Army Overseas Replacement Station, Replacement Enlisted Detachment, U.S. Army Personnel Center, located at Fort Dix, and did remain so absent until on or about 10 February 1970; and

     b.  violation of UCMJ, Article 86 with the Specification that the applicant did, on or about 28 March 1970, without authority, absent himself from his unit, to wit: Special Processing Detachment, U.S. Army Garrison, located at Fort Campbell, Kentucky, and did remain so absent until on or about 14 April 1970.

     c.  The applicant pled not guilty to the Charge and all Specifications and was found guilty of the Charge and all the Specifications.

     d.  On 16 June 1970, sentence was adjudged.  The applicant’s sentence was to be dishonorably discharged from the service; to forfeit all pay and allowances; and to be confined at hard labor for one year.  (One previous conviction considered.)

     e.  On 27 July 1970, the convening authority approved the sentence, directed that the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review, and the applicant be confined pending completion of the appellate review.

8.  The applicant’s military personnel records contain a copy of Headquarters, Department of the Army, message, dated 21 December 1970, subject: [Applicant’s Name and Social Security Number] that shows, as directed by the Secretary of the Army, so much of the sentence that provides for dishonorable discharge was changed to a bad conduct discharge.  This document also shows that the applicant was to be furnished a Bad Conduct Discharge Certificate 
covering the period from his entry into service on current enlistment.  This document further shows that clemency on the sentence to confinement was disapproved.

9.  The applicant’s military personnel records contain a copy of United States Army Court of Military Review, Appellate Military Judges, United States (Appellee) versus [Applicant] in Court-Martial 423867, Decision, dated
6 January 1971, that shows the Court found the findings of guilty and sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that they should be approved, such findings of guilty and the sentence were affirmed.  This document also shows that with respect to the approved sentence of dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year; the portion of the sentence pertaining to dishonorable discharge was previously changed to a bad conduct discharge per order of the Secretary of the Army on 21 December 1970. 

10.  The applicant’s military personnel records contain a copy of Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 218, dated 22 February 1971.  This document shows, in pertinent part, the applicant's sentence was affirmed pursuant to Article 66.  This document also shows that by order of the Secretary of the Army, dated
21 December 1970, so much of the sentence as provides for dishonorable discharge was changed to a bad conduct discharge and directed the applicant be furnished a Bad Conduct Discharge Certificate covering the period from his entry into service on current enlistment.  This document further shows that the provisions of Article 71(c) having been complied with, the sentence as thus modified, the bad conduct discharge was ordered duly executed.

11.  The applicant's military personnel records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he entered active duty this period on 17 November 1967 and was discharged on
15 March 1971 with a bad conduct discharge, characterized as under conditions other than honorable.  The DD Form 214 shows the authority for the applicant’s separation was Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-1b; Headquarters, Third United States Army, Fort McPherson, General Court-Martial Order Number 26, dated 27 July 1970; and Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, General Court-Martial Order Number 218, dated 22 February 1971, with Separation Program Number 292, and that he was issued a DD Form 259A [Bad Conduct Discharge Certificate].  This document also shows, in pertinent part, the applicant had 964 days time lost under Title 10, U.S. Code, section 972.  At the time of his discharge the applicant had completed 4 months and 11 days of net service and 4 months and 11 days of total active service.
12.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

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.  Presidential Proclamation 4313 was issued on 16 September 1974.  It provided, in pertinent part, that individuals absent from the military for a long period of time, primarily in connection with the war in the Republic of Vietnam, could avail themselves of a clemency program.  If they returned to military control, swore allegiance again to the United States and agreed to perform a period of alternate service under the supervision of the Selective Service, a 
Clemency Discharge would be given.  However, the individual would normally receive an undesirable discharge from the military service.  Service discharge review boards and correction boards are not empowered to change the Clemency Discharge, but may review the underlying circumstances of the discharge.

15.  Army Regulation 635-200, in effect at the time of the applicant's discharge, provided the authority for separation of enlisted Soldiers upon ETS; authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 11 (Dishonorable and Bad Conduct Discharge) provides the authority for the issuance of a bad conduct discharge.

16.  Army Regulation 635-5-1 (Separation Program Numbers (SPN)), in effect at the time of the applicant's discharge, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It identifies the SPN of “292” as the appropriate code to assign enlisted Soldiers who are separated under the provisions of Army Regulation 635-200 as a result of court-martial (other than desertion).

17.  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.  

18.  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 contends, in effect, the character of service of his discharge should be upgraded because of injustice during the Vietnam-era and the feelings of the people of the United States at that time.  However, he provides insufficient evidence in support of his contention.

2.  The evidence of record shows that upon completion of advanced individual training, the applicant was issued orders to report to the U.S. Army Overseas Replacement Station, Fort Dix, New Jersey for assignment overseas to Germany.  The evidence of record also shows that the applicant went AWOL and failed to report for overseas movement to Germany.  Moreover, the evidence of record shows the applicant had three periods of AWOL during the period of service under review.

3.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  In addition, conviction and discharge were effected in accordance with applicable law and regulations and the applicant’s rights were protected throughout the court-martial process.

4.  There is no evidence that the applicant applied for a Clemency Discharge.

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

6.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that based on the seriousness of the offense for which he was convicted, clemency would not be appropriate in this case.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

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.



      __________XXX_________
               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)                                         AR20080018326



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ABCMR Record of Proceedings (cont)                                         AR20080018326



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