IN THE CASE OF:	  

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120020220 


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 undesirable discharge to a general discharge.

2.  The applicant states:

* prior to his service in Vietnam, he was a good Soldier
* he was demoted for being late for formation
* he had trouble adjusting to the military after Vietnam 

3.  The applicant provides his DD Form 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 enlisted in the Regular Army on 29 March 1966.  The highest grade he attained was specialist four, E-4 (temporary) on 1 April 1968.  He served in Vietnam from 9 December 1967 to 8 December 1968.

3.  His disciplinary history includes acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for committing the following offenses:

* on 14 April 1969, for being absent without leave (AWOL) from 28 March to 31 March 1969 
* on 22 May 1969, for threatening a noncommissioned officer (NCO)
* on 2 March 1970, for absenting himself from his appointed place of duty 

4.  Special Court-Martial (SPCM) Order Number 7, published by Headquarters, 1st (Tiger) Brigade, 2d Armored Division, Fort Hood, TX, dated 26 July 1969, shows he pled guilty and was found guilty of one specification of violating Article 86 of the UCMJ for being AWOL during the period 12 June to 2 July 1969.  The following sentence was adjudged on 26 July 1969:

* Reduction to private/E-1
* confinement at hard labor for 6 months
* a forfeiture of 2/3 months pay for 6 months

5.  SPCM Order Number 24, published by Headquarters, 2d Armored Division, Fort Hood, TX, dated 12 June 1970, shows he was found guilty of:

* two specifications of being AWOL during the periods 3 October to 
6 October 1969 and 7 October 1969 to 25 January 1970.
* one specification of violating a lawful general order given by an officer on 27 February 1970 
* one specification using disrespectful language towards an NCO

6.  The following sentence was adjudged on 26 July 1969:

* a Bad Conduct Discharge (BCD)
* reduction to private/E-1
* confinement at hard labor for 6 months

7.  On 12 June 1970, the sentence was approved and the record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  Pending completion of the appellate review, the applicant remained in confinement.
8.  On 16 July 1970, the U.S. Army Court of Military Review upheld the findings of guilty and found the sentence correct in law and fact and affirmed the findings of guilty and the sentence.

9.  SPCM Order Number 96, issued by Headquarters, III Corps and Fort Hood, on 31 July 1970, shows the appropriate authority ordered the BCD to be duly executed.

10.  On 20 August 1970, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 11, as a result of court-martial.  He completed a total of 3 years, 8 months, and 26 days of creditable active service with 244 days of lost time.  

11.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence 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 states that he had issues and a hard time adjusting to the military after his service in Vietnam.  However, there is no evidence nor did he submit any evidence that shows he sought help or informed his chain of command of these issues.  In view of the circumstances in this case, the applicant has not established a basis for clemency.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  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 applicant's record of service, the seriousness of the offense for which he was convicted, and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

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)                                         AR20120020220





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ABCMR Record of Proceedings (cont)                                         AR20120020220



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