IN THE CASE OF:	  

		BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120020789 


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 honorable or general under honorable conditions.

2.  The applicant states it has been 38 years and he has been a productive member of society.  He has serious medical issues stemming from Agent Orange exposure and post-traumatic stress disorder.

3.  The applicant provides a DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States), dated 2 November 2012, and five letters of support.

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 18 November 1968, completed basic combat training, advanced individual training, and basic airborne training, and was awarded military occupational specialty 11B1P (Light Weapons Infantryman – Parachutist).

3.  During training, the applicant qualified for and was awarded the Parachutist Badge, Expert Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Machine Gun Bar.

4.  The applicant was reported as absent without leave (AWOL) from 30 November through 7 December 1969.  His records do not contain any additional information about this AWOL or what disciplinary action, if any, was taken.

5.  The applicant served in Vietnam with Company B, 4th Battalion (Airborne), 503d Infantry Regiment, from 15 December 1969 through 28 August 1970.

6.  The applicant sustained combat wounds on two occasions, a gunshot wound in his throat on 27 June 1970 and fragment wounds to both buttocks on 28 August 1970.  As a result, he was awarded the Purple Heart and Purple Heart with 1st Oak Leaf Cluster.

7.  On 18 August 1970, the applicant was awarded the Bronze Star Medal with "V" Device for his heroic actions on 27 June 1970.  He was awarded the Bronze Star Medal with 1st Oak Leaf Cluster for meritorious service on 30 September 1970.

8.  After returning to the United States, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, as follows:

* on 18 January 1971, for being in an off-limits area
* on 5 April 1971, for being AWOL from 4 March through 2 April 1971
* on 19 August 1971, for an on-base traffic violation

9.  The applicant was granted leave to settle a family problem; however, he failed to return to his unit upon expiration of his authorized leave.  The applicant was reported as AWOL on 26 September 1971.  He notified his command that he had to appear at a trial for an offense he committed at home and would return upon resolution of the situation.  With no further contact, his command declared him a deserter effective 26 October 1971.  The applicant voluntarily returned to military control on 18 October 1972.

10.  On 6 December 1972, a special court-martial found the applicant guilty of AWOL and sentenced him to a BCD.

11.  On 9 May 1973, the special court-martial convening authority approved the sentence and directed referral of the record of trial to the U.S. Army Court of Military Review.  The applicant was placed on excess leave pending the outcome of the appellate review.

12.  On 10 January 1974, the U.S. Army Court of Military Review affirmed the findings and sentence.  The applicant apparently did not appeal this decision.

13.  Article 71(c) of the UCMJ having been complied with and the finding affirmed, the BCD was ordered executed on 14 May 1974.

14.  The applicant was discharged under other than honorable conditions on 1 November 1974 and he was issued a DD Form 259A (BCD Certificate).  His DD Form 214 (Report of Separation from Active Duty) shows he completed 4 years, 9 months, and 13 days of creditable active service with 426 days of lost time.  His DD Form 214 also shows he was awarded or authorized the Parachutist Badge, Army Commendation Medal, Purple Heart, Combat Infantryman Badge, Bronze Star Medal with "V" Device, Vietnam Service Medal with three bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), and Expert Marksmanship Qualification Badge with Rifle Bar.

15.  The letters of support from friends and family describe the applicant as an upstanding, hard working, and productive member of society.  He has been a good father and example for his stepchildren.

16.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the policies and procedures for enlisted personnel separations.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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 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.

18.  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 court-martial proceedings were conducted in accordance with applicable law and regulations, the punishment imposed was within legal limits, and the record of court-martial proceedings and appellate review are properly filed.  The type of discharge directed and the reasons therefor were appropriate considering the extended period of his AWOL (misconduct which also occurred prior to his arriving in Vietnam).

2.  Neither the mere passage of time nor normal good post-service citizenship are significant mitigating factors in and of themselves to warrant an upgrade of his discharge.

3.  The applicant has not provided and the records do not contain sufficient evidence to mitigate the seriousness of the offense that resulted in his court-martial action and discharge.  Therefore, there is an insufficient basis for upgrading his discharge based on clemency.

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 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)                                         AR20120020789



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120020789



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1