BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20130008700 


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, in effect, that his general discharge be upgraded to fully honorable, that he be granted clemency, and that his court-martial conviction be overturned and removed from his records. 

2.  The applicant states, in effect, the Army did not prepare him for the discrimination and atrocities that he was exposed to.  He was at the point of a nervous breakdown when he was unjustly court-martialed.  The charges against him were fabricated and his court-martial was filled with discrimination.  Additionally, he was assigned incompetent military counsel that he did not want.  Accordingly, he desires his general discharge to be upgraded to fully honorable and that he be granted clemency by removing the court-martial conviction from his records. 

3.  The applicant provides an 11-page letter explaining his application, copies of his birth certificate, letters from his spouse and employer, and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 was inducted into the Army at Fort Brooke, Puerto Rico on       11 August 1967.  He completed basic training at Fort Jackson, South Carolina and advanced individual training as a medical corpsman at Fort Sam Houston, Texas before being transferred to Vietnam on 9 January 1968.

3.  He was assigned to the 2nd Battalion, 8th Infantry Regiment, 4th Infantry Division for duty as a company aidman.

4.  On 22 April 1968, the applicant was re-evaluated psychiatrically.  The examining psychiatrist opined that the applicant had been in Vietnam for             4 months and in the field for 2 months and disobeyed an order to go to the field because he did not want to go.  The psychiatrist went on to state that the applicant had a long history of difficulty accepting rules and regulations, running away from home, dropping out of school, and stealing a car.  He further stated that there were no disqualifying defects sufficient to warrant disposition through medical channels, that the applicant was and is mentally responsible, able to distinguish right from wrong and to adhere to the right.  He diagnosed the applicant as having a character and behavior disorder, mixed, manifested by severe dissocial trends and passive-aggressive behavior.    

5.  On 24 April 1968, he was convicted by a general court-martial pursuant to his plea of disobeying a lawful order from a superior commissioned officer to collect his gear, get on a truck, and go to the forward area at Camp Enari, Republic of Vietnam.  He was sentenced to confinement at hard labor for 4 months, reduction to the pay grade of E-1, and a forfeiture of pay. 

6.  On 29 September 1968, his commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation       635-212 for unsuitability due to a character and behavior disorder.  He went on to state that every reasonable effort had been made to help the applicant and was unsuccessful.  His behavior was such that he was unsuitable for retention and he had no desire to do any type of work that would help the unit.  He antagonized people with his attitude and refused to carry his share of the load or follow orders given by his superiors.


7.  The appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.

8.  Accordingly, he departed Vietnam on 21 November 1968 and was transferred to Fort Hamilton, New York where he was discharged under honorable conditions on 21 November 1968 under the provisions of Army Regulation 635-212, for unsuitability.  He had served 11 months and 28 days of active service and had 103 days of lost time due to being in military confinement.  He served 6 months of foreign service.

9.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 9 June 1972 contending that he was unjustly court-martialed without considering that he had served in Vietnam.  On 5 July 1973, after considering the available evidence in his case, the ADRB determined that his discharge was both proper and equitable and voted to deny his request.

10.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b stated an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.

3.  Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and punishment were effected in accordance with applicable law and regulations, and the punishment was appropriate for the misconduct for which the applicant was convicted.  This Board does not have the authority to overturn his court-martial conviction, and the applicant has provided insufficient evidence in his case to warrant clemency involving his court-martial.

4.  The applicant’s contentions and supporting documents have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to his overall undistinguished record of service.  

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)                                         AR20130008700



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ABCMR Record of Proceedings (cont)                                         AR20130008700



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