BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20140015787 


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. 

2.  The applicant states:

* his discharge was inequitable because it was based on one offense in
12 months of service 
* he was close to finishing his enlistment and he believes he was unfairly given a bad conduct discharge 
* he served in Vietnam where his record of promotions shows he was generally a good Soldier
* he wants his discharge upgraded so he may receive benefits 
* he served under a very prejudiced commander who made it very rough for him to perform his duties 

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* Letter from his commander in Vietnam 
* Special Court-Martial Order Number 95
* Special Court-Martial Order Number 807
* DD Form 47 (Record of Induction)
* Special Orders Number 135, dated 12 July 1974
* DA Form 20 (Enlisted Qualification Record)
* DA Form 20B (Insert to DA Form 20, Record of Court-Martial Conviction)

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's records show he was inducted into the Army of the United States on 5 May 1971.  He was trained in and held primary military occupational specialty (MOS) 76P (Stock Control Accounting Specialist) and secondary MOS 64C (Motor Transport Operator). 

3.  He served in Vietnam from on or about 24 September 1971 to 25 April 1972.  He was assigned to the 520th Engineer Company and the 79th Light Maintenance Company.  

4.  He was promoted to private first class/E-3 on 25 September 1971 and specialist four/E-4 on 7 January 1972.   His DA Form 20 shows he was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16). 

5.  On 8 July 1972, he departed his unit in an absent without leave (AWOL) status and he returned to military control on 5 December 1972. 

6.  On 19 January 1973, he again departed his unit in an AWOL status and on 17 February 1973, he was dropped from Army rolls as a deserter.  He returned to military control on 8 June 1973. 

7.  He was reported in an AWOL status on three more occasions from 12 June to 14 August 1973, 16 to 27 August 1973, and 4 September 1973 to 7 January 1974.  His last AWOL was terminated when he was apprehended by Federal Bureau of Investigation officials. 


8.  On 11 March 1973, consistent with his pleas, the applicant was convicted by a special court-martial of five specifications of being AWOL from 8 July to 
6 December 1972, 19 January to 8 June 1973, 12 June to 14 August 1973, 16 to 27 August 1973, and 4 September 1973 to 7 January 1974.  The court sentenced him to a bad conduct discharge, confinement at hard labor for 118 days, a forfeiture of $217 pay for 4 months, and reduction to the lowest enlisted grade.  

9.  On 7 June 1974, the convening authority approved the sentence, and except for the bad conduct discharge, the sentence was ordered executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

10.  Between 7 June and 27 December 1974, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

11.  There is no indication he petitioned the Court of Military Appeals for a grant of review with respect to any matter of law. 

12.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, Special Court-Martial Order Number 807, dated 27 December 1974, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

13.  The applicant was discharged on 22 January 1975.  His DD Form 214 shows he was discharged as a result of court-martial in accordance with paragraph 11-2 of Army Regulation 635-200 (Personnel Separations) with an under other than honorable conditions characterization of service.  He was issued a Bad Conduct Discharge Certificate.  This form further shows he completed a total of 2 years and 1 month of creditable military service and he had 587 days of lost time. 

14.  He provides a letter, dated 7 October 1971, from the commanding officer of the 79th Maintenance Company.  The letter was addressed to his mother and informed her that her son, the applicant, was in good hands and the command was proud to have him as a member of the unit. 

15.  Army Regulation 635-200 provides for the separation of enlisted personnel. 

	a.  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.
	b.  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.  

16.  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 a special court-martial was warranted by the gravity of the offenses charged.  His 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.  He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.  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.  With respect to his contentions that: 

a. His discharge was inequitable because it was based on one offense in 
12 months of service, his contention is rejected because it’s not accurate.  He was charged with 5 instances of being AWOL and not one offense as he contends. 

	b.  He was close to finishing up his enlistment and he believes it was unfair to give him a bad conduct discharge, his contention is rejected.  Although he may have been close to finishing his period of service, he never did.  He chose to go AWOL instead.  

   c.  He served in Vietnam where his record of promotion shows he was generally a good Soldier, this contention is noted.  However, his extensive history of misconduct overshadows his service in Vietnam and record of promotion. 

	d.  He wants his discharge upgraded so he may receive benefits, this contention is also rejected.  This Board does not correct records for the sole purpose of entitling a member to benefits.  Each case is considered on its own merits. 

	e.  He served under a very prejudiced commander who made it very rough for him to perform his duties.  This issue is not supported with any evidence.  But even if this were true, the proper forum to raise such issue would have been during the court-martial proceedings or the appellate review.  

4.  The applicant's service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable discharge or a general discharge is not warranted in this case.  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)                                         AR20140015787



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ABCMR Record of Proceedings (cont)                                         AR20140015787



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