IN THE CASE OF:	  

		BOARD DATE:  23 July 2013

		DOCKET NUMBER:  AR20120023044 


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 to a fully honorable discharge. 

2.  The applicant states:

* he was prejudiced during the court-martial proceedings in Vietnam; he received combat-related injuries and he was awarded the Purple Heart
* he was injured mentally and physically in Vietnam but his mental status was never evaluated to determine what led to his behavior; his rights were violated 
* he was later denied benefits by the Department of Veterans Affairs (VA) despite being eligible for the benefits after having been wounded in combat
* he was in a state of distress at the time which led to the charge of being absent without leave (AWOL)
* he was uncaring at the time and his actions in Vietnam stemmed from memories of murderous things he did under orders
* his actions also stemmed from the way he was treated in the rear that led him to act out from "the nature of racial prejudice"
* his state of mind was not considered at the time, especially after being confined in a conex prior to the court-martial
* he received ineffective assistance; the court-martial showed prejudice and did not follow military rules and procedures; and he was denied a mental status evaluation

3.  The applicant provides:

* DA Form 20 (Enlisted Qualification Record)
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), ending on 29 July 1968 and 8 February 1971
* Certificate and orders for award of the Purple Heart
* VA patient data card
* Multiple statements in support of VA claim
* List of his doctors and VA regional offices
* Supplemental statement
* Letter from his spouse to the VA

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's records show he enlisted in the Regular Army (RA) for 3 years on 19 May 1967.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 36K (Field Wireman). 

3.  On 23 January 1968, while still in training, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 21 to 22 January 1968.  

4.  He was honorably discharged on 29 July 1968 for the purpose of immediate reenlistment.  He was issued a DD Form 214 that captured this period of active service as well as his awards of the Parachutist Badge and the National Defense Service Medal. 

5.  He reenlisted in the RA for 3 years on 30 July 1968.  He subsequently served in Vietnam from 23 September 1968 to on or about 2 November 1969.  

6.  He was initially assigned to Headquarters and Headquarters Company (HHC), 3rd Battalion, 21st Infantry, 199th Infantry Brigade.  He was wounded in action on 7 March 1969 and awarded the Purple Heart.  

7.  He was reassigned to Company B, 23rd Supply and Transport Battalion in or around July 1969 and then HHC, 26th Engineer Battalion, in or around August 1969.  

8.  On 2 September 1969, he accepted NJP under the provisions of Article 15 of the UCMJ for going to a village without authorization and visiting a known house of prostitution, and violating a general regulation by driving at 50 miles per hour in a 15 mile per hour zone. 

9.  On 4 September 1969, he departed his unit in an AWOL status and 8 October 1969, he was dropped from the rolls as a deserter.  He returned to military control on 17 October 1969 and was placed in pre-trial confinement.  

10.  On 4 December 1969, he pled guilty to and was convicted by a general court-martial of:

* one specification of AWOL from 5 September to 14 October 1969
* eleven specifications of signing a false official statement related to currency transactions with intent to deceive
* one specification of failing to obey a lawful order
* one specification of wrongfully appropriating a military truck
* one specification of disobeying a lawful command from his superior officer
* one specification of wrongfully communicating a threat to kill the first sergeant

11.  The court sentenced him to a bad conduct discharge, a reduction to the lowest enlisted grade, forfeiture of all pay and allowances, and confinement at hard labor for 2 years and 6 months.  

12.  On 14 January 1970, the convening authority approved the sentence and, except for that part of the sentence extending to a bad conduct discharge, he ordered the sentence executed.  He also ordered the record of trial forwarded to The Judge Advocate General of the Army for appellate review and ordered the applicant confined.

13.  On 23 September 1970, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

14.  On 14 December 1970, the U.S. Court of Military Appeals denied his petition for a grant of review. 

15.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 1263, dated 18 December 1970, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

16.  The applicant was discharged from the Army on 8 February 1971.  The DD Form 214 he was issued shows he was discharged under the provisions of paragraph 11-1b of Army Regulation 635-200 (Personnel Separations), as a result of court-martial.  This form further shows his character of service as under other than honorable conditions and he was issued a Bad Conduct Discharge Certificate.  He completed 1 year, 2 months, and 4 days of active service during this period and 1 year, 2 months, and 11 days of prior active service.  He also had 492 days of lost time. 

17.  He submitted various statements/letters in support of his VA appeal as well as a letter from his spouse to the VA in relation to his VA claim.  In her letter, the spouse chronicles his military upbringing, their marriage - which began in 1998 - his military service, his combat experience, and the change she went through as a result of his combat experience. 

18.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel:

   a.  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 (emphasis added), 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.  

19.  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 evidence of record shows his trial by a general court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  This Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  With respect to his arguments:

	a.  Contrary to his contention that his actions were caused by his combat experience, the evidence of record clearly shows his misconduct began in training, shortly after his entry on active duty when he departed his training unit in an AWOL status.  

	b.  Also contrary to his contention, the court-martial had access to his service record and would have considered his award of the Purple Heart during the proceedings and during the sentencing.  Likewise, the mental and physical injuries he contends he had would have been considered by the court.  This would have been the proper forum to raise such issues. 

	c.  He provides no evidence that his rights were violated or that he was provided with ineffective assistance, or that the court-martial showed prejudice and did not follow military rules and procedures, or that he was treated any different than other Soldiers.  

	d.  His entitlements or lack of entitlements to VA benefits is not within the purview of this Board.  He should address such issues with that agency. 

	e.  None of his contentions are substantiated, especially after the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 

3.  His service in Vietnam was considered.  However, his misconduct spanned his entire period of military service and a review of his entire record of service including his two instances of NJP, AWOL, and court-martial conviction clearly show his overall period of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  As such, he is not entitled to an upgrade of his discharge to either general nor honorable. 

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)                                         AR20120023044





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ABCMR Record of Proceedings (cont)                                         AR20120023044



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