BOARD DATE:	  8 January 2013

		DOCKET NUMBER:  AR20120010728 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he went through a lot while serving in Vietnam and the memories continue to haunt him to this day.

   a.  At the time he learned how to protect himself and his fellow Soldiers when trouble presented itself.  When he saw an M-14 rifle coming at him, he reacted to protect himself and his fellow Soldiers.

   b.  He states he now gets only 2 or 3 hours of sleep a night; he suffers from nightmares; is startled when a car backfires or he hears fireworks; and he cannot watch violent movies.  He has tried to forget the bad memories from Vietnam, but he cannot.

   c.  He adds he is trying to get his life back in order.

3.  The applicant provides no additional documentary evidence in support of his application.

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 enlisted in the Regular Army on 12 October 1966 for a period of 3 years.  He was awarded military occupational specialty 13A (Cannoneer).

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on two occasions for:

* being absent without leave (AWOL) from 14 to 21 March 1967
* misconduct (no other information available) on or about 3 April 1968

4.  He served in Vietnam from 18 January 1968 through 14 January 1969.

5.  Summary Court-Martial Order Number 1, issued by Headquarters,
8th Battalion (175 Millimeter) (Self-Propelled), 4th Artillery (Vietnam), dated
30 December 1968, shows the applicant was tried at a summary court-martial in December 1968.

	a.  He pled not guilty to the charge and the two specifications and he was found guilty of:
	
* willfully disobeying a lawful order from a noncommissioned officer (NCO) on 8 December 1968
* being disrespectful in language towards an NCO on 8 December 1968

	b.  His sentence was adjudged on 17 December 1968.  It provided for the forfeiture of $60.00 for 1 month and reduction to the grade of private first class (E-3).  The sentence was approved on 30 December 1968.

6.  General Court-Martial Order Number 30, issued by Headquarters, U.S. Army Training Center, Infantry, Fort Lewis, WA, dated 12 March 1970, shows the applicant was tried at a general court-martial in January 1970.


a. He pled guilty to and was found guilty of:
	
* on 14 September 1969, by means of force and violence, putting a Soldier in fear and stealing from him an M-14 rifle, two M-14 magazines, and 20 rounds of 7.62mm ammunition; the property of the U.S. Government
* on 20 September 1969, violating a lawful general regulation by having in his possession 2 rounds of 7.62mm ammunition

	b.  His sentence was adjudged on 8 January 1970.  It provided for the forfeiture of all pay and allowances, confinement at hard labor for 9 months, reduction to private (E-1), and to be discharged with a bad conduct discharge.  

7.  The Record of Trial by General Court-Martial reviewed by the Staff Judge Advocate, Headquarters, U.S. Army Training Center, Infantry, Fort Lewis, WA, on 11 March 1970, shows the applicant was called to the stand for a sworn statement and that he testified.

	a.  that he was present when his two companions robbed another Soldier of an M-14 rifle.  One of his companions held a knife to the victim's throat and took the weapon.

   b.  that he took no active part in the robbery, but that the motive was to get revenge upon a person who had wronged his companion.

8.  On 12 March 1970, the convening authority approved the applicant's sentence, except the part extending to a bad conduct discharge, and ordered it executed.  He also directed that the record of trial be forwarded to the Judge Advocate General of the Army for review by the U.S. Court of Military Review.

9.  On 14 May 1970, the U.S. Army Court of Military Review affirmed the findings and the sentence as approved by the convening authority.

10.  Headquarters, U.S. Army Training Center, Infantry, Fort Lewis, WA, General Court-Martial Order Number 75, dated 21 May 1970, confirmed the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, the sentence was ordered duly executed.

11.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was separated on 7 June 1970 and issued a Bad Conduct Discharge Certificate, under the provisions of Army
Regulation 635-204 (Personnel Separations - Dishonorable and Bad Conduct 

Discharge) with Separation Program Number 292, as a result of court-martial.
He completed 2 years and 9 months of net active service and he had 324 days of time lost.

12.  On 23 June 1977, in response to his application for review of his discharge under the Special Discharge Review Program (SDRP), he was informed that to be eligible under the program the discharge must not have been imposed by court-martial.  He was not eligible under the SDRP because his discharge was imposed as a result of court-martial.

13.  Army Regulation 635-204, in effect at the time of the applicant's separation, provided the authority for separation of enlisted Soldiers with a bad conduct or dishonorable discharge.  Paragraph 1b of that regulation provides that an enlisted Soldier will be discharged with a bad conduct discharge pursuant to an approved sentence of a general or special court-martial imposing a bad conduct discharge.  The appellate review must be completed and the sentence affirmed before it can be duly executed.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

   a.  Chapter 3, 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.

   b.  Chapter 3, 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.

15.  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 that his bad conduct discharge should be upgraded because the actions that led to his discharge were a result of his training and instinct to survive in the face of danger.

2.  Records show the applicant pled guilty to and was found guilty of the charge and specification of, by means of force and violence, putting a Soldier in fear and stealing from him an M-14 rifle, two M-14 magazines, and 20 rounds of 7.62mm ammunition.  Moreover, the contention the applicant now puts forward in his application to this Board is inconsistent with his testimony that was summarized in the Record of Trial.

3.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations and his rights were protected throughout the court-martial process.

4.  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.

5.  After a thorough and comprehensive review of the applicant's military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency would not be appropriate in this case.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20120010728



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ABCMR Record of Proceedings (cont)                                         AR20120010728



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