IN THE CASE OF:	  

		BOARD DATE:  5 December 2013

		DOCKET NUMBER:  AR20130007253 


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 that his bad conduct discharge (BCD) be upgraded to honorable.

2.  The applicant states he enlisted in the Army on 20 May 1969.  After his training, he was sent to the Republic of Vietnam (RVN).  He was eager to go to the RVN; however, before he was to ship out his father's health took a turn for the worse.  He asked if he could remain in the United States until he knew if his father was going to be alright.  He was told that only his new commander in the RVN could make that decision.  He went to the RVN and asked again.  He also said that he was more than happy to complete his tour in the RVN once his father got better, or passed away.  The commander told him it was too late to go home now that he was in the RVN.  The decision should have been made prior to his leaving the United States.  His father died on 4 January 1970 and he was allowed to come home for the funeral.  He felt as though he had been betrayed by the Army.  He missed the last 6 weeks of his father's life.  For this reason, he felt he was treated unfairly and should have his discharge changed.  He went absent without leave (AWOL) because he felt let down by the Army for misleading him.

3.  The applicant provides no additional documentation.

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.  On 26 May 1969, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 64B (Heavy Vehicle Driver).

3.  On 26 September 1969, the applicant departed Fort Dix, New Jersey, for duty in the RVN.

	a.  On 2 November 1969, he was assigned for duty with the 92nd Engineer Battalion (Construction).

	b.  On 13 February 1970, he was advanced to specialist four, pay grade E-4.

	c.  On 7 April 1970, he departed the RVN and returned to the United States.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) indicates he was AWOL or in confinement during the following periods:

* AWOL: 12 April to 28 October 1970
* Confinement: 29 October to 15 November 1970
* AWOL: 17 November 1970 to 17 January 1971
* AWOL: 3 to 28 February 1971
* AWOL: 26 to 29 March 1971
* Confinement: 30 March to 23 June 1971

5.  General Court-Martial Order Number 194, Fort Devens, Massachusetts, dated 13 August 1971, shows the applicant was convicted of violating Article 86 (two charges with a total of four specifications) under the Uniform Code of Military Justice (UCMJ) for AWOL during the periods specified in the previous paragraph.

6.  The applicant pleaded not guilty.  He was found guilty.  His sentence, adjudged on 24 June 1971, was a BCD.

7.  On 13 August 1971, the convening authority approved the sentence.
8.  General Court-Martial Order Number 9, Headquarters, Fort Devens, Massachusetts, dated 13 January 1972, announced the sentence had been affirmed.  Article 71(c) having been complied with, the sentence was to be executed.

9.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged from the Regular Army on 
31 January 1972 in accordance with General Court-Martial Order Number 9, 
Fort Devens, Massachusetts, dated 13 January 1972.  He received an under other than honorable conditions characterization of service.

10.  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.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a provides 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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to honorable because he believes he was treated unfairly by the Army.

2.  Trial by 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 final discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's records show that the applicant returned to the United States after about 6 months in the RVN and was subsequently AWOL or in confinement from 7 April 1970 to his court-martial conviction in June 1971.  While it is clearly understood that the applicant's loss of his father had to have caused a severe emotional strain on him, it does not excuse his disregard for honoring his service obligation by being AWOL or in confinement for such an extended period.

4.  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 seriousness of the applicant's misconduct, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the above, the applicant’s request should be denied.

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)                                         AR20130007253





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ABCMR Record of Proceedings (cont)                                         AR20130007253



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