IN THE CASE OF:	   

		BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20140004155 


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, an upgrade of his bad conduct discharge.

2.  The applicant states:

* his court-martial was conducted in Vietnam
* he was a combat medic during his second tour
* he lacked adequate legal representation and the circumstances of combat were not adequately presented

3.  The applicant provides 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 enlisted in the Regular Army on 20 April 1967 for 3 years.  He completed training and was awarded military occupational specialty 91B (medical specialist).  He served in Vietnam from 10 November 1967 to 9 November 1968.

3.  On 25 June 1969, he was convicted by a special court-martial of:

* disobeying a lawful command
* treating a superior noncommissioned officer with contempt
* being absent without leave from 5 June 1969 to 7 June 1969

4.  He was sentenced to confinement at hard labor for 6 months, forfeiture of $73.00 pay per month for 6 months, and reduction to E-1.  On 5 September 1969, the convening authority approved the sentence, but suspended confinement at hard labor in excess of 30 days for 6 months.  On 11 September 1969, the unexecuted portion of the sentence and forfeiture of pay were remitted.

5.  He again arrived in Vietnam on 8 October 1969.

6.  On 5 December 1969, he was convicted by a general court-martial of:

* behaving with disrespect toward a lieutenant colonel
* disobeying a lawful command
* resisting apprehension
* assault (two specifications)
* communicating a threat to kill

7.  He was sentenced to confinement at hard labor for 1 year, forfeiture of all pay and allowances, reduction to E-1, and a bad conduct discharge.

8.  He departed Vietnam on 22 December 1969.

9.  On 7 January 1970, the convening authority approved the general court-martial sentence.

10.  On 9 April 1970, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

11.  On 22 May 1970, the convening authority ordered the bad conduct discharge duly executed.

12.  He was issued a bad conduct discharge on 8 June 1970 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of a court-martial.  He completed a total of 2 years, 4 months, and 10 days of creditable active service with 233 days of lost time.

13.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.

	a.  Chapter 11, in effect at the time, stated a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  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.

	c.  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.

14.  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's contentions that he lacked adequate legal representation and circumstances of combat were not adequately presented relate to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.
 
2.  A trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  His record of service included one special court-martial conviction, one general court-martial conviction, and 233 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

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 applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20140004155



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ABCMR Record of Proceedings (cont)                                         AR20140004155



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