IN THE CASE OF:	  

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140016467 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states that he was sent to Vietnam in April 1966 and he went on numerous missions (sweeps and ambushes) in and around the Iron Triangle.  He received the Purple Heart for wounds received in action.  He was well aware of what was required of each individual to perform and to be able to carry their own weight in order to have a successful mission.

   a.  At the time he was recovering from being wounded and did not feel he was sufficiently recovered (mostly mentally) to be effective in the extreme combat situations they were facing.  He states, "in other words, we had enough to deal with without having someone not being 100 percent able to perform and carry their own weight, and put others at risk."
   
   b.  The night before the incident in question he disobeyed a direct order and members of his squad were involved in a fight with other members of the platoon.  As a result, the next morning, there was a feeling of a loss of togetherness and camaraderie.  He then disobeyed a direct order by refusing to go on a mission with his company.

   c.  He states that he is 70 years old, he has been married for 36 years, and he and his wife have three daughters and three grandchildren.  His wife served 11 years on active duty in the U.S. Navy and retired from the U.S. Navy Reserve.  She is now an elementary school teacher.
   d.  His discharge did not prevent him from supporting and raising their family.  He was gainfully employed ever since he was discharged and he recently retired from Pender Memorial Hospital.

   e.  He has relived his decision innumerable times, he regrets his decision, and it continues to haunt him.  He requests upgrade of his discharge for the peace of mind it would give him.

3.  The applicant provides no documentary evidence in support of his 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 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 26 October 1965 for a period of 3 years.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

* item 31 (Foreign Service), his service in Vietnam began on 11 July 1966
* item 38 (Record of Assignments):  Company A, 1st Battalion, 27th Infantry Regiment, 25th Infantry Division:

* rifleman/automatic rifleman from 21 July 1966 through 9 October 1966
* confinement, effective 10 October 1966

* item 40 (Wounds):  fragment wound, left elbow, 22 September 1966

4.  Headquarters, 25th Infantry Division (Vietnam), General Court-Martial Order Number 3, dated 18 January 1967, shows the applicant was tried at a general court-martial on 9 December 1966.

	a.  He pled guilty to and was found guilty of willfully disobeying a lawful command from his superior officer on 10 October 1966 to "get your gear, join your platoon, and go on this operation."

	b.  He was sentenced to forfeit all pay and allowances for two years, reduction to the grade of E-1, confinement at hard labor for two years, and to be dishonorably discharged.

5.  Headquarters, Fort Leavenworth, KS, General Court-Martial Order Number 383, dated 22 May 1967, announced that only so much of the applicant's sentence as provided for forfeiture of all pay and allowances for one year, reduction to the grade of E-1, confinement at hard labor for one year, and dishonorable discharge was affirmed by the U.S. Army Court of Military Review.  The provisions of Article 71(c) having been complied with, the modified sentence was ordered duly executed.

6.  On 28 June 1967, the applicant's request for restoration to duty so that he could earn a discharge under honorable conditions was disapproved.  However, The Adjutant General authorized substitution of a bad conduct discharge for the dishonorable discharge executed pursuant to the general court-martial sentence.

7.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was separated under conditions other than honorable on 5 June 1967 and issued a Bad Conduct Discharge Certificate under the provisions of Army Regulation 635-204 (Personnel Separations –
Dishonorable and Bad Conduct Discharge) with Separation Program Number 292, as a result of court-martial.  He completed 11 months and 14 days of net active service and he had 239 days of time lost.

8.  Army Regulation 635-204, in effect at the time of the applicant's separation, provided the authority for separation of enlisted Soldiers with a bad conduct or dishonorable discharge.  Paragraph 1b of that regulation provides that an enlisted Soldier will be discharged with a bad conduct discharge pursuant to an approved sentence of a general or special court-martial imposing a bad conduct discharge.  The appellate review must be completed and the sentence affirmed before it can be duly executed.

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

   a.  Chapter 3, 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.  Chapter 3, 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.

10.  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 contends that his bad conduct discharge should be upgraded because he had not sufficiently recovered from being wounded to be effective in combat when he disobeyed a direct order.
 
2.  The evidence of record shows the applicant sustained a wound to his left elbow on 22 September 1966.  Then, more than 2 weeks later (on 10 October 1966), he disobeyed a lawful command from his superior officer to go on a combat operation.  There is no evidence of record that shows the applicant was physically or mentally incapable of performing that mission.

3.  The contention the applicant puts forward in his application to this Board 
(i.e., that he had not sufficiently recovered from being wounded) is an argument he could have presented during his court-martial.  However, apparently he did not because records show he pled guilty to and was found guilty of the charge and specification of willfully disobeying a lawful command from his superior officer.

4.  The applicant's trial by court-martial was warranted by the gravity of the offense for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations and his rights were protected throughout the court-martial process.  (In this regard, it is noted that The Adjutant General substituted a bad conduct discharge for the approved portion of the sentence directing a dishonorable discharge.)

5.  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.

6.  After a thorough and comprehensive review of the applicant's military service record, it is concluded that based on the seriousness of the offense for which he was convicted, clemency would not be appropriate in this case.

7.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, his post-service conduct is insufficient as a basis for changing or upgrading his discharge.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20140016467



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ABCMR Record of Proceedings (cont)                                         AR20140016467



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