BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120007871


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 (BCD) to an honorable discharge (HD).

2.  The applicant states:

	a.  he was told his BCD would be automatically upgraded 6 months after his separation date if he did not get into any trouble, but he later learned that was not true;

	b.  he served honorably in Vietnam and only began to have problems in his head upon his return home;

	c.  after making several attempts to get help, he turned to alcohol, stayed drunk all the time, and he could not eat, sleep, or concentrate because he was trying to forget the things he saw in Vietnam;

   d.  he spent years drinking, lost two families, and has several health conditions related to Agent Orange; and 
   
   e.  he receives medical and mental health care; after many years of counseling he has made a remarkable turnaround, grown up, and practices staying sober and dealing with his thoughts.



3.  The applicant provides:

* Self-authored statement
* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) 

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 initially enlisted in the Regular Army (RA) on 1 June 1967.  He was trained in and awarded military occupational specialty 63H (Automotive Repairman).

3.  He continued to serve until he was honorably discharged for the purpose of immediate reenlistment on 27 February 1968.  The DD Form 214 issued on 27 February 1968 shows he completed 8 months and 23 days of creditable active duty service.

4.  On 28 February 1968, he reenlisted in the RA.

5.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the following foreign locations for the periods indicated:

* Germany from 6 January to 15 March 1968 (2 months)
* Vietnam from 24 April 1968 to 22 April 1969 (12 months)

6.  On 5 December 1969, pursuant to his plea, a special court-martial (SPCM) convicted the applicant of being absent without leave (AWOL) from on or about  9 July - 3 November 1969.


7.  On 16 September 1970, pursuant to his plea, an SPCM convicted the applicant of three specifications of being AWOL from on or about 9 January to    9 April 1970, 3 to 25 May 1970, and from 4 June to 14 August 1970.  The approved sentence was a BCD, confinement at hard labor for 3 months, and a forfeiture of $40.00 pay for 3 months.

8.  On 15 January 1971, the United States Army Court of Military Review examined the applicant's record of trial, found it to be legally sufficient to support the findings of guilty and the sentence, and affirmed the applicant's conviction.

9.  Headquarters, Fort Bragg, North Carolina, SPCM Order Number 22, dated 22 February 1971, provided that Article 71(c) of the UCMJ having been complied with, the BCD would be duly executed.

10.  On 10 November 1971, the applicant was separated, under the provisions of Army Regulation 635-200, by reason of court-martial with a BCD in the rank of PVT/E-1.  The DD Form 214 he was issued shows he completed a total of 
2 years, 10 months, and 10 days of creditable active military service and he had accrued 566 days of time lost due to being AWOL and in confinement.

11.  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 discharge or BCD.  It stipulates, in pertinent part, that a Soldier will be given a BCD 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 BCD portion of the sentence is ordered duly executed.

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.  

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 contends his BCD should be upgraded to an HD because he was told his discharge would be upgraded 6 months after his separation for service and indicates his mental problems resulted from service in Vietnam.

   a.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests that a change be made to the discharge.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge or both were improper or inequitable.

   b.  Further, the available evidence does not support that the applicant suffered from any mental or medical disabling conditions while on active duty that would mitigate his misconduct.

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

3.  The available evidence reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge action.  Given the gravity of his misconduct the evidence is insufficient to support clemency in this case. 

4.  In view of the above, the applicant's request should be denied.

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)                                         AR20110012717



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120007871



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1