IN THE CASE OF:	  

		BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120021447 


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 bad conduct discharge to an honorable discharge.

2.  The applicant states his mother died in 1968 during the Vietnam War and he was not allowed to go see her.  He was also mistreated at the base stockade.

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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, in pay grade E-1, on 4 August 1966, for 3 years.  He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was advanced to the rank/grade of private (PV2)/E-2 on 4 December 1966.

3.  On 7 June 1967, he was convicted by a special court-martial of being absent without leave (AWOL) from 5 January to 13 May 1967.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of pay, and reduction to PV1/E-1.

4.  On 13 June 1967, the convening authority suspended the sentence of
6 months confinement.

5.  He was again reported AWOL on 7 July 1967.  He was subsequently dropped from the rolls (DFR) of his unit as a deserter on 6 August 1967.

6.  He was returned to military control on 19 January 1968.

7.  On 13 February 1968, the convening authority vacated the suspended sentence of 6 months confinement and ordered it to be executed.

8.  On 18 March 1968, he was convicted by a general court-martial of being AWOL from 7 July 1967 to 18 January 1968.  He was sentenced to confinement at hard labor for 1 year, forfeiture of all pay and allowances, and to be discharged with a bad conduct discharge.

9.  In July 1968, the appropriate convening authority approved the findings and ordered the sentence duly executed.

10.  On 1 August 1968, the U.S. Army Board of Review found the findings of guilty and sentence correct in law and fact and affirmed the sentence.

11.  On 18 September 1968, he was discharged in pay grade E-1, under the provisions of Army Regulation 635-204 (Personnel Separations Dishonorable and Bad-Conduct Discharge), with a character of service of under conditions other than honorable with the issuance of a Bad Conduct Discharge Certificate.  He completed 7 months and 6 days of total active service with 559 days of time lost.

12.  Army Regulation 635-204, in effect at the time, set forth the basic authority for the separation of enlisted personnel as a result of a court-martial.  Paragraph 

1(a) of the regulation stated an enlisted person would receive a bad conduct discharge pursuant only to an approved sentence of a court-martial imposing a bad conduct discharge.  The appellate review must be completed and the affirmed sentence ordered duly executed.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, states:

	a.  Paragraph 3-7a provides that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally meets the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization will be clearly inappropriate.

	b.  Paragraph 3-7b provides that a general discharge was 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 change a court-martial 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 evidence of record shows the applicant was convicted by a special and a general court-martial for lengthy periods of AWOL.  On 18 September 1968, he was discharged pursuant to the sentence of his general court-martial and he was issued a bad conduct discharge after the sentence was affirmed.

2.  He provided no evidence to show his discharge is unjust.  There is no error or injustice apparent in his record.  There is also no evidence his general court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to a general or a fully honorable discharge.  He was properly discharged in accordance with pertinent regulations with due process and no violation of his rights.

3.  Trial by 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 characterized the misconduct for which he was convicted.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.

5.  Additionally, 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 his offenses and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20120021447



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ABCMR Record of Proceedings (cont)                                         AR20120021447



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