IN THE CASE OF:
BOARD DATE: 10 July 2012
DOCKET NUMBER: AR20120001408
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 an honorable discharge.
2. The applicant states the following:
a. He was diagnosed with amyotrophic lateral sclerosis (ALS) in November 2011 which he believes is affiliated with Agent Orange from Vietnam. He served his time in Vietnam and smoked pot to cope with his medical evacuation job dealing with the injured and dying. When he left Vietnam and landed in the United States, he was spit on and called disgraceful names which made him want to get high and forget about it.
b. When he arrived at Fort Riley, KS, his first sergeant told him he was a disgrace to the military because his hair was too long. There were too many people for one job so he got stuck on cleaning and painting details and was not able to work in his military occupational specialty (MOS). Again, he would get high to cope. When he got busted, he wasn't offered any kind of help. He was sentenced to Fort Leavenworth, KS, for having a handful of pills. Now he is in dire need of assistance from the Department of Veterans Affairs (VA) and would appreciate an upgrade.
3. The applicant provides:
* VA Form 21-4138 (Statement in Support of Claim)
* Orders
* Two certificates
* An award citation
* A diploma
* A medical statement, dated 28 November 2011
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 applicants 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 applicants 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 records show he enlisted in the Regular Army on 16 October 1970 and he held MOS 76J (Medical Supply Specialist). He was awarded the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal with "60" Device, and the Army Commendation Medal.
3. On 17 February 1971, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty.
4. On 21 October 1971, he was convicted by a summary court-martial of one specification of being absent without leave (AWOL) from his assigned unit from 21 September to 17 October 1971. He was sentenced to forfeiture of $95.00 a month for 1 month, confinement for 1 month, and reduction to private (PVT)/E-1.
5. He served in Vietnam from on or about 15 November 1971 to on or about 25 June 1972.
6. On 27 February 1973, he was convicted by a general court-martial of one specification each of wrongfully possessing lysergic acid diethylamide (LSD), wrongfully possessing marijuana, wrongfully selling marijuana, and two
specifications of wrongfully selling LSD. He was sentenced to be dishonorably discharged, forfeiture of all pay and allowances, confinement for 2 years, and reduction to PVT/E-1.
7. On 28 August 1973, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, forfeiture of all pay and allowances, confinement for 1 year, and reduction to PVT/E-1, and, except for the bad conduct discharge, ordered it executed.
8. On an unknown date, after the applicant's sentence was affirmed and complied with, the convening authority ordered his bad conduct discharge executed.
9. On 17 April 1974, he was discharged from the Army. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged as a result of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Separations), with an under other than honorable conditions characterization of service, and issued a Bad Conduct Discharge Certificate. He completed 2 years, 7 months, and 4 days of active service with 289 days of time lost due to AWOL and confinement.
10. Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel. 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.
11. 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.
12. 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 applicants misconduct started before he arrived in Vietnam.
2. The evidence of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged. His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations, and his discharge appropriately characterized the misconduct for which he was convicted.
3. By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited. The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.
4. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA or other benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.
5. After a review of his record of service, it is clear his service did not meet the criteria for an honorable or a general discharge, or any other characterization of service other than the one he received. Therefore, he is not entitled to the 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 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.
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