IN THE CASE OF:	  

		BOARD DATE:	  10 June 2014

		DOCKET NUMBER:  AR20130018023 


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 his bad conduct discharge be upgraded to a general discharge.

2.  The applicant states he should have been allowed to stay on active duty.  He needs his discharge upgraded in order to be eligible to receive Department of Veterans Affairs (VA) benefits.  He now has congestive heart disease which is a presumptive disease under VA regulations for exposure to Agent Orange.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and three medical 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 12 November 1969 and he held military occupational specialty 94B (Cook).  On 11 June 1970, he was assigned to the 123rd Maintenance Battalion, Fort Hood, TX.

3.  On 11 November 1970, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 7 to 8 November 1970.

4.  On or about 24 December 1970, he was assigned to the Overseas Replacement Station, Oakland, CA.  

5.  On 14 January 1971, he received NJP under Article 15, UCMJ, for being AWOL from 27 December 1970 to 12 January 1971.

6.  He served in Vietnam from 25 January to 8 November 1971 while assigned to the 23rd Supply and Transport Battalion.

7.  While in Vietnam, he received NJP under Article 15, UCMJ as follows on:

* 23 February 1971, for knowingly turning in a falsified and forged sick slip in order to gain quarters
* 16 March 1971, for failing to report to his appointed place of duty

8.  He was subsequently assigned to the 58th Signal Battalion, Fort Lewis, WA.

9.  On 29 November 1971, he was reported as AWOL from his assigned unit and he was subsequently dropped from the rolls (DFR) as a deserter.

10.  On 31 December 1971, he was returned to military control and assigned to the U.S. Army Personnel Control Facility (PCF), Fort Gordon, GA.

11.  On 10 January 1972, he was reported as AWOL from his assigned unit and he was DFR as a deserter.

12.  On 8 May 1972, he was returned to military control and assigned to the PCF, Fort Benning, GA.

13.  On 19 May 1973, he was reported as AWOL from his assigned unit and he was DFR as a deserter.

14.  On 12 February 1973, he was returned to military control and assigned to the PCF, Fort Benning, GA.

15.  On 20 April 1973, he was convicted by a general court-martial of one specification each of being AWOL from:

* 29 November to 31 December 1971
* 10 January to 8 May 1972
* 19 May 1972 to 12 February 1973

16.  He was sentenced to be discharged from the service with a bad conduct discharge, to forfeit $150 per month for 8 months, and to be confined at hard labor for 8 months.

17.  On 18 June 1973, the court-martial convening authority approved the sentence.  He was confined in the U.S. Disciplinary Barracks, Fort Leavenworth, KS.  On 25 October 1973, he was released from confinement and returned to duty pending appellate review. 

18.  General Court-Martial Order Number 4, dated 15 May 1974, issued by the U.S. Army Aviation Center and Fort Rucker, Fort Rucker, AL, found as the findings of guilty and the sentence had been affirmed, the bad conduct discharge was ordered to be executed.

19.  He was discharged on 17 May 1974, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
paragraph 11-1a with a separation program number of 292 (Court-Martial).  He completed 2 years, 7 months, and 8 days of net active service with 694 days (1 year, 10 months, and 29 days) of lost time due to being AWOL and/or in confinement.

20.  The applicant provides three medical documents that show he was treated at the Phoebe Putney Memorial Hospital, Albany, GA, in March 2006 for a cardiac catheterization.

21.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 11-1a of the version of the regulation in effect at that time, stated that an enlisted person would be receive a bad conduct discharge pursuant only to an approved sentence of a general court-martial imposing a bad conduct discharge.  

22.  Army Regulation 635-200, 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.

23.  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 confirms the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  

2.  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.

3.  After a review of his record of service, it is clear that his service did not meet the criteria for a general discharge or any characterization of service other than the one he received.  

4.  In view of the foregoing, he is not entitled to the requested 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 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)                                         AR20130018023





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ABCMR Record of Proceedings (cont)                                         AR20130018023



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