IN THE CASE OF:	  

		BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20120003864 


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 his refusal to obey his lieutenant at the time was in response to the lieutenant's disregard of his request to speak with the Inspector General regarding why he was taken off jump status and transferred to the 4th Infantry Division.  The lieutenant issued the order after he (the applicant) made the statement. 

3.  The applicant provides:

* DD Form 1476 (Prisoner's Admission Summary Data)
* PMG (K) Form Number 82 (Clemency and Parole Action Record)
* Review of the Staff Judge Advocate

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel did not make a specific request. 

2.  Counsel states he represents the applicant with his Department of Veterans Affairs matter.  The applicant has asked him to forward this application to the appropriate agency on his behalf.   

3.  Counsel did not provide any 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 records show he enlisted in the Regular Army for a period of 3 years on 16 February 1967 and held military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  He served in Vietnam from 22 August 1967 to on or about 27 June 1968.  He was assigned to:

* Company D, 51st Infantry, from 27 August 1967 to 26 September 1967
* Company E, 20th Infantry (Airborne), from on or about 15 October 1967 to on or about 10 April 1968
* Company A, 1st Battalion, 35th Infantry, 4th Infantry Division, from on or about 11 April to on or about 26 June 1968 

4.  On 31 January 1968, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for being absent from his unit on 21 January 1968.

5.  On 27 June 1968, in Vietnam and consistent with his plea, he was convicted by a general court-martial of one specification of disobeying a lawful order from a superior officer to join the company.  The court sentenced him to a bad conduct discharge, a forfeiture of two-thirds pay and allowances, confinement at hard labor for 18 months, and a reduction to the lowest enlisted grade. 

6.  On 13 October 1968, the convening authority approved so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 18 months, forfeiture of $73.00 pay per month for 18 months, and reduction to private/E-1, and except for the bad conduct discharge, he ordered the sentence approved.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

7.  On 17 December 1968, the U.S. Army Court of Military Review affirmed the approved findings of guilty and a modified sentence.  The Court noted an error with the original sentence as pertained to "forfeiture of pay and allowances" and approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for one year, reduction to the lowest enlisted grade, and forfeiture of $73.00 pay per month for 12 months.  

8.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 183, dated 24 February 1969, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

9.  He was discharged on 24 March 1969.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged as a result of court-martial in accordance with Army Regulation 635-200 (Personnel Separations) with an under other than honorable conditions character of service. This form further shows he completed a total of 1 year, 4 months, and 12 days of creditable military service and he had 270 days of lost time.

10.  He submitted documents pertaining to his confinement, evaluation, planning, and denial of clemency.

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, 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.

13.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a general court-martial was warranted by the gravity of the offense charged.  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.

2.  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 modified sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

3.  His contention that he refused the order of his lieutenant to join the rest of the company after he indicated he wanted to see the Inspector General is noted.  However, in the absence of evidence to the contrary, it is presumed the applicant raised this issue during his court-martial and it is also presumed the Court addressed it as a point of contention.  After all, the court-martial would have been the right forum to raise any related or extenuating issues. 

4.  In addition to the court-martial conviction, his record of service included one instance of NJP for being absent from his unit.  As a result, his service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable discharge or a general discharge is not warranted in this case.  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.

ABCMR Record of Proceedings (cont)                                         AR20120003864



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ABCMR Record of Proceedings (cont)                                         AR20120003864



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