BOARD DATE:   13 January 2015

		DOCKET NUMBER:  AR20140009241


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 that his bad conduct discharge be upgraded to general, under honorable conditions.

2.  The applicant states his punishment was too harsh and life altering.  He contends his two awards of the Purple Heart, his Combat Infantryman Badge, his completion of the Airborne Course, and his Army commendations for service in the Republic of Vietnam are events during his military service that should have mitigated his punishment.  He let a family issue cloud his judgment.  He was happy with his military service and would have made it a career if it were not for his poor judgment.  Today, he is still proud of his service to his country.

3.  The applicant provides a letter of support, dated 19 May 2014.

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.  On 16 May 1968, the applicant enlisted in the Regular Army.  He completed his initial training as an infantryman, to include parachutist qualification.

3.  On 17 December 1968, he was assigned as a light weapons infantryman with the 2nd Battalion, 47th Infantry Regiment, located in the Republic of Vietnam.

	a.  On 26 January 1969, he was wounded in action and subsequently awarded the Purple Heart.

	b.  On 23 November 1969, he was absent without leave (AWOL).

4.  Headquarters, II Field Force Vietnam General Court-Martial Order Number 5, dated 26 May 1970, shows he was convicted of the following charges under the Uniform Code of Military Justice (UCMJ):

	a.  Charge I: Violation of Article 92 for wrongful and unlawful purchase of military payment certificates (four specifications);

	b.  Charge II: Violation of Article 86 for being AWOL from on or about           24 November to on or about 1 December 1969;

	c.  Additional Charge I: Violation of Article 85 for desertion (not guilty, but guilty of violating Article 86 for AWOL from 24 December 1969 to on or about 
26 January 1970);

	d.  Additional Charge II: Violation of Article 92 (12 specifications) for wrongful and unlawful purchase of military payment certificates; and

	e.  Additional Charge III: Violation of Article 134 (four specifications) for having possession of certain instruments with the intent to deceive.

5.  He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 3 years, and reduction to the rank/grade of private/E-1.

6.  The convening authority approved only so much of the sentence as provided for a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 2 years, and reduction to private/E-1.

7.  On 12 August 1970, the U.S. Army Court of Military Review considered the entire record of his conviction and issues brought to it by him.  The court found the findings of guilty and the sentence as approved by proper authority correct in law and fact.  The court further determined that only so much of the sentence providing for a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 18 months, and reduction to the grade of E-1 should be approved.  The same, as thus modified were affirmed.

8.  On 10 November 1970, the United States Court of Military Appeals denied his petition for a grant of review.

9.  U.S. Disciplinary Barracks (USDB) General Court-Martial Order Number 1122, dated 13 November 1970, announced the sentence had been affirmed.  Article 71(c) having been complied with, and the sentence as modified, was to be duly executed.  Confinement was to be served in the USDB, or elsewhere as competent authority may direct.

10.  On 7 December 1970, the Secretary of the Army directed he be issued a bad conduct discharge as an act of clemency.

11.  His DD Form 214 shows he was discharged from the Regular Army on         7 December 1970, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1b, due to court-martial.  He received an under other than honorable conditions characterization of service.

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.

13.  On 19 May 2014, a friend of his wrote a letter of support, wherein he stated he has known the applicant for 25 years and considers him to be one of his best friends.  He contends the applicant is a gifted person who would excel in any environment.  He is organized, efficient, and extremely competent.  He has an excellent rapport with people of all ages and backgrounds.  Sometimes, when they talk, the applicant is bothered because of the characterization of his discharge.  The author asks that the Board consider relieving him of this harsh discharge.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his bad conduct discharge should be upgraded because it was too harsh and life altering.

2.  Trial by court-martial was warranted due to the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulation, and the discharge he received appropriately characterizes the misconduct for which he was convicted.

3.  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.

4.  His records show the Secretary of the Army granted clemency in his case in 1970, by changing his sentence from a dishonorable discharge to a bad conduct discharge.  This act of clemency was most likely based of his record of previous combat service in the Republic of Vietnam.  Given the seriousness of his misconduct, additional clemency is not warranted.

5.  In view of the above, his request should be denied.

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)                                         AR20130005125



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ABCMR Record of Proceedings (cont)                                         AR20140009241



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