IN THE CASE OF:	  

		BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20120003690 


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 he was tried by a military tribunal in a combat zone.  He heard this was illegal.  He feels all the errors he had made in the military have well damaged his post-military life.  He asks for a second chance so he can move on with his life.

3.  The applicant provides letters from and to the National Personnel Records Center. 

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 records show he enlisted in the Regular Army on 23 March 1970 and he held military occupational specialty 76Y (Unit Supply Specialist). 

3.  He served in Vietnam from 15 November 1970 to 6 November 1971.  He was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with "1960" Device, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  On 10 June 1970, at Fort Ord, CA, and consistent with his pleas, he was convicted by a summary court-martial of one specification of being absent without leave (AWOL) from 30 April to 27 May 1970.  The Court sentenced him to a forfeiture of pay and confinement at hard labor for 30 days.  The convening authority approved a suspended sentence on the same date.

5.  On 25 January 1972, in Vietnam and consistent with his pleas, he was convicted by a general court-martial of:

* one specification of possessing a false and unauthorized identification card
* two specifications of possessing false in-country travel orders
* one specification of larceny of a government vehicle
* one specification of violating a general regulation
* one specification of possessing an illegal ration card
* two specifications of forgery (uttering checks with intent to defraud)

The Court sentenced him to a bad conduct discharge, a forfeiture of all pay and allowances, confinement at hard labor for 2 years and 9 months, and a reduction to the lowest enlisted grade. 

6.  On 16 February 1972, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 8 months, forfeiture of all pay and allowances, and reduction to private/E-1, and except for the bad conduct discharge, the sentence was ordered executed.  The record of trial was forwarded to the Judge Advocate General of the Army for appellate review.

7.  On 2 May 1972, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 

8.  There is no indication he submitted to the U.S. Court of Military Appeals denied a petition for grant of review.  

9.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 686, dated 14 June 1972, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

10.  The applicant was discharged from the Army on 10 July 1972 with an under other than honorable conditions characterization of service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed a total of 1 year, 5 months, and 6 days of creditable military service and he had 227 days of lost time.

11.  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.

12.  Army Regulation 635-200 (Personnel Separations) provides for the following characters of service: 

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  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.

2.  The applicant was tried by a court-martial; he was not tried by a military tribunal. A military tribunal is a kind of a military court that is designed to try members of enemy forces during wartime and operates outside the scope of conventional criminal and civil proceedings.  Military tribunals are distinct from courts-martial.  

3.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.  

4.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to 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.



      _______ _   _______   ___
               CHAIRPxERSON
      
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)                                         AR20120003690



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120003690



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1