IN THE CASE OF:
BOARD DATE: 11 December 2014
DOCKET NUMBER: AR20140006866
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 discharge.
2. He states he did not believe the war in Vietnam was justified.
3. He provides no additional documents in support of this application.
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 applicants 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 applicants 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 24 June 1971.
3. Special Court-Martial (SPCM) Order Number 14, dated 27 June 1972, shows he pled guilty and was found guilty of one specification of violating Article 86 of the Uniform Code for Military Justice (UCMJ) for being absent without leave (AWOL) from 2 February to 21 April 1972.
4. SPCM Order Number 7, dated 31 January 1974, shows he pled guilty and was found guilty of one specification of violating Article 86 of the UCMJ for being AWOL from 5 March to 7 November 1973.
5. The following sentence was adjudged on 11 December 1973:
* discharged with a bad conduct discharge (BCD)
* forfeiture of $200.00 pay per month for 4 months
* confinement at hard labor for 4 months
6. On the same date, the sentence was approved and the record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. Pending completion of the appellate review, the applicant remained in confinement.
7. SPCM Order Number 159, dated 15 March 1974, shows the applicant was restored to duty pending completion of appellate review.
8. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions on 23 October 1974, under the provisions of Army Regulation 635-200, paragraph 11-2, as a result of court-martial. He completed a total of 2 years and 14 days of creditable active service with 466 days of lost time.
9. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Paragraph 11-2 of this regulation states that a Soldier will be given a BCD 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.
10. Army Regulation 635-200, 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 members 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.
11. 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.
12. 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 trial by court-martial was warranted by the gravity of the offenses charged. The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.
2. His service record shows he was convicted by an SPCM. 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, his record of service is insufficiently meritorious to warrant an honorable or general discharge.
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) AR20140006866
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ABCMR Record of Proceedings (cont) AR20140006866
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