IN THE CASE OF:	  

		BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130012511 


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 general discharge.

2.  The applicant states, in effect, that he needs benefits from the Department of Veterans Affairs (VA).  He joined the military to serve his country, but he could not follow orders.  He has a passive-aggressive personality and cannot follow orders from some people of authority.  He has been self-employed most of his life.  He completed basic training and qualified for airborne training.  His wife had no money for rent and started cheating on him.  He was unable to provide living quarters for his wife and family on $98.00 a month.  He became mixed-up about the war and no one could explain why they were in Vietnam.   

3.  The applicant provides no additional documents.

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 7 June 1968 and he did not complete advanced individual training and was not awarded a military occupational specialty. 

3.  On 4 September 1969, he was convicted by a general court-martial of one specification each of being absent without leave (AWOL) from 19 through 30 September 1968 and from 14 October 1968 through 29 April 1969.  He was sentenced to a bad conduct discharge, confinement for 6 months, and a forfeiture of pay for 6 months.

4.  On 9 October 1969, the convening authority approved the sentence and the record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

5.  On 5 November 1969, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

6.  There is no evidence he applied to the U.S. Court of Military Appeals for a review of his case.

7.  Headquarters, III Corps and Fort Hood, Fort Hood, TX, General Court-Martial Order Number 152, dated 18 November 1969, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

8.  Accordingly, he was discharged in pay grade E-1 on 5 December 1969, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 11, as a result of a court-martial.  He was issued a bad conduct discharge.  He completed 3 months and 26 days of net active service with 428 days of time lost.

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

   a.  Chapter 11 - An enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence had been ordered duly executed. 

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

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 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 shows the applicant was convicted by a general court-martial and was sentenced to a bad conduct discharge.  His discharge was affirmed and he was discharged accordingly on 5 December 1969.

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

3.  Trial by court-martial was warranted by the offenses changed.  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.  Any redress by this Board of the finality of a court-marital 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 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.
5.  His desire to have his bad conduct discharge upgraded so that he can qualify for medical and/or other benefits administered by the VA is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the VA.

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)                                         AR20130012511



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130012511



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1