IN THE CASE OF:	  

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140010711 


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 the discharge under conditions other than honorable to a general discharge (GD).  He also requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was awarded the Purple Heart (PH) and Army Commendation Medal (ARCOM).  

2.  He states, in effect, that the records he has provided support his request.  

3.  He provides his DD Form 214, orders, excerpts of court-martial proceedings, and excerpts of his service medical records.

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 4 December 1968, the applicant was inducted into the Army of the United States.  He completed initial entry training, and he was awarded military occupational specialty 36K (Wireman).  

3.  His records are ambiguous with regard to the exact dates of his service in Vietnam.  

	a.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) indicates he departed the continental United States (CONUS) on 7 May 1969 and returned to CONUS on 15 August 1969.  Item 38 (Record of Assignments) indicates he was assigned to duty in Vietnam with the 3rd Battalion, 187th Infantry, from 24 May to 15 August 1969.  

	b.  His service medical records show he received treatment for fragment wounds at McDonald Army Hospital, Fort Eustis, VA, beginning on 8 July 1969.  An entry dated 14 October 1969 states he had shrapnel hit his leg on 24 May 1969.  

4.  On 24 October 1969, Headquarters, 7th Transportation Command (Terminal B), Fort Eustis, VA, issued Special Court-Martial Order Number 94.  The order shows that, pursuant to his plea, he was found guilty of being absent without leave (AWOL) from 16 to 22 August 1969 and from 8 to 30 September 1969.  He was sentenced to be confined at hard labor for 3 months, to forfeit $50.00 pay per month for 3 months, and to be reduced to private one (PV1)/E-1.  Only so much of the sentence as provided for hard labor for 1 month, forfeiture of $50.00 pay per month for 3 months, and reduction to PV1 was approved and ordered executed.  The portion of the sentence to confinement at hard labor for 1 month was suspended for 6 months, at which time the unexecuted portion of the sentence was to be remitted unless the suspension was sooner vacated.  

5.  The applicant provides and his Official Military Personnel File (OMPF) contains a Post-Trial Review, dated 24 October 1969, and a transcript of testimony in extenuation and mitigation.  The Post-Trial Review shows a Staff Judge Advocate (SJA) recommended the applicant receive a lighter sentence based on his belief that the applicant could best be rehabilitated by retention in his unit.  In his review, the SJA cited testimony provided by the applicant's squad leader in extenuation and mitigation in his review.  He also cited the applicant's testimony that he had been wounded in Vietnam and had received the PH.  

6.  On 12 November 1969, Headquarters, 101st Airborne Division (Airmobile), Army Post Office 96383 (Vietnam), issued General Orders Number 13660 announcing award of the ARCOM to the applicant for meritorious achievement while serving in Vietnam from 1 June to 31 October 1969.  
7.  On 4 November 1971, Headquarters, U.S. Army Engineer Center and Fort Belvoir, Fort Belvoir, VA, issued General Court-Martial Order Number 35.  The order shows that, pursuant to his pleas, he was found guilty of:

* being AWOL from 1 November 1969 to 27 April 1971, from 10 to 22 June 1971, and from 11 July to 3 August 1971
* escaping from lawful confinement on 10 June and 11 July 1971

He was sentenced to be discharged from the service with a bad conduct discharge (BCD) and to be confined at hard labor for 8 months.  The sentence was approved, but the unexecuted portion adjudging confinement was remitted.  

8.  On 13 June 1972, the U.S. Army Court of Military Review affirmed the findings of guilty and sentence.  

9.  On 12 February 1973, Headquarters, U.S. Army Engineer Center and Fort Belvoir, Fort Belvoir, VA, issued General Court-Martial Order Number 22, which ordered execution of the affirmed sentence.  

10.  On 12 February 1973, he was discharged with his service characterized as under conditions other than honorable under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11.  He completed 2 years, 1 month, and 13 days of net active service this period with 746 days of lost time.  The PH and ARCOM are not listed on his DD Form 214.  

11.  His OMPF does not contain orders awarding him the PH or documentation indicating PH orders were published.  The service medical records contained in his OMPF do not show the cause of the fragment wounds he incurred in Vietnam.  

12.  A review of the Vietnam casualty listing compiled by The Adjutant General's Office, Casualty Division, does not show the applicant's name listed as a casualty.

13.  A review of the Awards and Decorations Computer Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Awards and Decorations Branch of the U.S. Army HRC, failed to reveal any orders for the PH pertaining to the applicant.

14.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.  It states:

	a.  A medal will not be awarded or presented to any individual whose entire service subsequent to the time of the distinguished act, achievement, or service has not been honorable.  The determination of "honorable" will be based on such honest and faithful service according the standards of conduct, courage, and duty required by law and customs of the service of a member of the grade to whom the standard is applied.

	b.  The Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

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

	a.  Chapter 11 of the version in effect at the time provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed.  The service of Soldiers sentenced to a BCD was to be characterized as under conditions other than honorable.  

	b.  Paragraph 3-7b provides that a GD 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 evidence of record does not support the applicant's request for an upgrade of his BCD to a GD or his request that the PH and ARCOM be added to his DD Form 214.  

2.  His conviction and sentence by a general court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  He was not given his BCD until after his conviction and sentence had been reviewed and affirmed by the U.S. Army Court of Military Review.  

3.  The applicant has provided documents related to his special court-martial, which appear to have been the basis for mitigating his special court-martial sentence.  These documents do not show any factors mitigating the misconduct that led to his general court-martial sentence to a BCD.  

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.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  Medical records indicate he incurred fragment wounds while serving in Vietnam.  Unfortunately, the available records do not include orders for the PH, nor do they show that his wounds were sustained while in action against an enemy or as a result of hostile action.  In the absence of such evidence, there is an insufficient basis upon which to add the PH to his DD Form 214.  

6.  General orders awarded him the ARCOM; however, the orders were issued in Vietnam after he had been found guilty of being AWOL in CONUS by a special court-martial.  It appears the award approval authority was not aware that he had been reassigned to duty in CONUS before the end of the cited period and was also unaware of his special court-martial conviction.  His initial conviction and ongoing misconduct effectively barred him from receiving this decoration.  Because he did not serve according the standards of conduct, courage, and duty required by law and customs, it would not be appropriate to add this decoration to his DD Form 214.  

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)                                         AR20140010711





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ABCMR Record of Proceedings (cont)                                         AR20140010711



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