IN THE CASE OF:  

		BOARD DATE:  19 November 2013

		DOCKET NUMBER:  AR20130006244


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).

2.  The applicant states his records are correct; however, he's trying to get his discharge upgraded and he was informed he needed to send his request to the Army Board for Correction of Military Records (ABCMR) since it's been over 15 years since he was discharged.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a 7-page letter to the Board. 

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 19 November 1965.  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  He completed training and was awarded military occupational specialty (MOS) 13A (Field Artillery Basic).  After completing his initial entry training, he was reassigned to Fort Benning, GA, to attend the basic airborne course.

4.  On or about 12 May 1966, after completing the basic airborne course, he was assigned to Company A, 50th Signal Battalion (Airborne), XVIII Airborne Corps, Fort Bragg, NC.

5.  At a later date, he was reclassified into MOS 05C (Radio Teletype Operator).  

6.  On or about 5 December 1967, he was reassigned to the 46th Special Forces Company (Airborne), 1st Special Forces Group, in the Republic of Thailand.

7.  On 10 June 1968, while serving in the Republic of Thailand, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following offenses:

* for breaking his administrative restrictions, on or about 4 June 1968
* for failing to go, at the prescribed time, to his appointed place of duty, on at least 2 occasions on or about  5 June 1968

8.  On 16 September 1968, while serving in the Republic of Thailand, he received NJP under the provisions of Article 15, UCMJ, for absenting himself from his unit from on or about 30 August 1968 through on or about 9 September 1968.

9.  At a general court-martial at Headquarters, U.S. Army Support, Republic of Thailand, he pled guilty to a single specification each of 3 separate Charges:

	a.  Charge I – without authority, absenting himself from his unit, from on or about 1 October 1968 through on or about 6 October 1968;

	b.  Charge II – without authority, wrongfully selling military property to a Thai national, on or about 3 October 1968; and

	c.  Charge III – wrongfully appropriating U.S. government property, on or about 3 October 1968. 

10.  On 27 November 1968, the Court found him guilty of all specifications and Charges, and sentenced him to confinement at hard labor for 12 months, forfeiture of $50.00 pay per month for 12 months, reduction to the rank/grade of private/E-1, and to be discharged from the service with a BCD.

11.  On 12 February 1969, the convening authority approved the sentence and, except for the BCD, ordered it duly executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.  The applicant was remanded for confinement at the U.S. Disciplinary Barracks, Fort Leavenworth, KS.

12.  On 14 April 1969, the U.S. Army Court of Military Review reviewed the applicant's court-martial proceedings, set aside the convening authority's order of confinement, and otherwise affirmed the approved findings and sentence.

13.  General Court-Martial Order Number 515, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 26 May 1969, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the sentence, including the BCD, be duly executed.

14.  On 23 June 1969, the applicant was discharged in accordance with the provisions of chapter 11 (Dishonorable and BCD) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  His DD Form 214 shows he was discharged with an under other than honorable character of service and he was issued a BCD certificate.  

15.  The applicant provides a 7-page letter to the Board, wherein he summarizes his life experiences before, during, and after his enlistment into, and service in, the U.S. Army, including his period of confinement.  The applicant appeals to the Board for fair and impartial consideration of his request for relief.  The applicant expresses pride in his family and remorse for his past actions.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel as a result of court-martial.  The version in effect at the time stipulated the following:

	a.  An honorable discharge is a separation from the Army 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 meets 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.  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.  

	c.  An enlisted person will receive a BCD pursuant only to an approved sentence of a court-martial imposing a BCD.  The appellate review must be completed and the affirmed sentence ordered duly executed.

17.  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 was given a bad conduct discharge pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offenses charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.  

2.  All requirements of law and regulation were met and his rights were fully protected.  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.  Based on the seriousness of his offenses, there is an insufficient basis to grant relief.

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)                                         AR20090019040



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130006244



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1