IN THE CASE OF:	  

		BOARD DATE:	    21 August 2012

		DOCKET NUMBER:  AR20120002556 


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 be upgraded because he was suffering from severe post traumatic stress disorder (PTSD).

2.  The applicant states he was 17 years when he enlisted in the military and he had no idea how it was going to be like becoming a Soldier.  It was also his first time away from home and family.  He was then sent to Vietnam where he saw things no one should ever be exposed to and where his conduct took a turn for the worst.  He contends that he has amended his ways greatly, he is a happily married man, and is practicing ministry at his local church.  He adds that he has built a lifelong relationship with his church and he is no longer the radically challenged kid he once was.  

3.  The applicant provides six third-party statements of support.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not provide additional evidence and/or argument.

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 born on 20 September 1951.  He enlisted in the Regular Army on 18 April 1969 and he was awarded military occupational specialty 11D1P (Scout Observer/Parachutist) upon completion of initial entry training.  

3.  A DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record)), indicates that on 3 February 1970, he was found guilty by a summary court-martial of the following offense:

* absent without leave (AWOL) during the period 2 - 3 February 1970
* missing company movement through neglect 
* wrongfully appearing in an unclean class "A" uniform 

4.  He arrived in Vietnam on 1 August 1970.

5.  On 5 February 1971, he accepted nonjudicial punishment for violating a lawful general regulation by being in an off-limits area.

6.  The DA Form 20B further indicates that on the following dates he was found guilty by the following courts-martial for the following offenses:

* special court-martial, 5 June 1971

* two specifications of AWOL from 13 January to 1 February 1971 and 
    4 to 31 March 1971
* resisting arrest by a Criminal Investigation Command (CID) agent 

* special court-martial, 13 November 1971, two specifications of AWOL from 11 to 26 August 1972 and 16 to 29 September 1971

7.  With his last court-martial, he was sentenced to forfeiture of $75.00 per month for three months, confinement with hard labor for three months, and a bad conduct discharge, suspended for six months.  


8.  A Department of the Army message indicates the applicant escaped on 
5 June 1972 from the U.S. Army Installation Stockade, Vietnam, and was apprehended by military police on 17 July 1972.

9.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, Special Orders Number 177, dated 18 August 1972, directed the applicant's bad conduct discharge effective 22 August 1972 and the issuance of a DD Form 259A (Bad Conduct Discharge Certificate).

10.  Accordingly, he was discharged on 22 August 1972 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of court-martial with a bad conduct discharge.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he accrued 476 days of lost time.  

11.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.  

12.  He provides six third-party statements of support that attest to his good post-service conduct and accomplishments and fully support the upgraded of his discharge.  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence was 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's contention that his discharge should be upgraded has been carefully considered.  

2.  He contends that he was suffering from PTSD.  However, there is no evidence and he has not provided any evidence to show that he suffered from PTSD and that the condition caused his misconduct.  Additionally, his pattern of misconduct commenced prior to his arrival in Vietnam.  

3.  He also contends he was young and that it was his first time away from his family; however, age is not a sufficiently mitigating factor.  He completed initial entry training which shows he was mature enough to serve.  Additionally, he was 
18 years and 4 months old at the time of his first court-martial conviction and there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.  

4.  The 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 final discharge appropriately characterized the misconduct for which he was convicted.

5.  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 seriousness of his offenses and absent sufficient mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

6.  The statements of support and his post-service conduct and accomplishments were noted; however, the statements failed to show that his trial by court-martial was unjust.  

7.  Based on the foregoing, there is no basis to grant 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.

ABCMR Record of Proceedings (cont)                                         AR20120002556



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ABCMR Record of Proceedings (cont)                                         AR20120002556



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