PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            20 July 2000
	DOCKET NUMBER:   AR2000040234

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. McKim-Spilker .		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Kenneth L. Wright		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.
2.  The applicant requests, in effect, that his bad conduct discharge (BCD) be upgraded to an honorable discharge (HD).

3.  He states, in effect, that he was convicted of a crime less than a year after his return from Vietnam; that he committed the crime because of financial problems; and, that he has medical problems and needs his veterans’ benefits.

4.  The applicant’s military records show that he enlisted on 29 February 1968 in the Regular Army (RA) for a period of 3 years.  He successfully completed basic combat training at Fort Bliss, Texas, and advanced individual training (AIT) in military occupational specialty (MOS) 67A (Aircraft Maintenance Crewman) at Fort Rucker, Alabama.  Upon completion of AIT he was assigned to Fort Hood, Texas. 

5.  On 18 June 1968 he was promoted to private first class/E-3.

6.  On 6 August 1968 he was promoted to specialist/E-4.

7.  On 24 December 1968 he departed Fort Hood, Texas, in casual status en route to Vietnam.  He participated in two campaigns, and received the Vietnam Service Medal and the Republic of Vietnam Campaign Medal with 60 Device. 

8.  On 30 January 1970 he departed Vietnam in casual status en route to Fort Rucker, Alabama.  At Fort Rucker, he was assigned duty as a 71F (Mail Clerk). 

9.  On 23 November 1970 he was convicted by a general court-martial for wrongfully and unlawfully stealing certain mail matters.  He was sentenced to a bad conduct discharge, confinement at hard labor for 18 months, and reduction to private/E-1.

10.  On 12 December 1970, prior to approving the sentence, the court-martial convening authority requested a review of the trial and advice from the Staff Judge Advocate (SJA).  The SJA submitted evidence of extenuating and mitigating circumstances in the applicant’s case.  The record revealed that when the applicant returned from Vietnam he suffered financial difficulties in his efforts to support his wife and child, as well as his sister and brother-in-law.  The sister testified substantially that she and her husband moved into the applicant’s trailer, placing further stress on the applicant since her own husband was unemployed.  The applicant confessed to stealing $28 from the mail in order to purchase groceries for his family. 

11.  The SJA interviewed the applicant and determined that the applicant felt that his decision to steal the money was stupid, so he confessed to the crime.  He further determined that the applicant expressed remorse for what he had done, that he was not a chronic or habitual offender, and that his unit commander had reported that his character and quality of service had been excellent.

12.  On 18 December 1970, in accordance with the pre-trial agreement, only so much of the sentence as provided for the BCD, confinement at hard labor for 
12 months, and reduction to private/E-1 was approved.  The sentence was ordered executed and the applicant was confined to the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas.

13.  On 1 February 1971 the facility psychiatrist at Fort Leavenworth, Kansas, conducted a confinement admission summary.  The examiner noted that the applicant related a positive home life while growing up and that he was close to both of his parents.  He graduated from high school with a vocational background in welding and machine shop.  His marriage was intact, although in financial difficulty, specifically from the applicant’s additional responsibility for his sister.  The examiner concluded that he was not a chronic offender and that his offense appeared to be solely related to situational factors concerning finances, stress, and transient poor judgment.  He recommended clemency and determined the applicant was not in need of rehabilitative measures. 

14.  On 8 March 1971 the United States Army Court of Military Review affirmed the findings of guilty and the sentence adjudged.

15.  On 29 March 1971 the applicant underwent a clemency and parole board review.  The report stated that the applicant adjusted well to confinement, earning days for extra good time.  The psychiatrist again recommended clemency indicating that his wife and child needed him at home and that he did not require specific rehabilitative measures.   

16.  On 5 April 1971 the Clemency and Parole Board, and the commandant of the confinement facility, recommended, in part due to his Vietnam service, as well as the needs of his family and his generally acceptable military record, remittance of confinement in excess of 9 months. 

17.  On 10 May 1971, while in confinement, the applicant was discharged from the Army with a BCD.  He was credited with 2 years, 9 months, and 17 days active military service.

18.  On 10 September 1971 the applicant was discharged from confinement after
9 months and 17 days.

19.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, provides that a soldier will be given a punitive discharge (BCD or DD) 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.

20.  The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction. 

CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  The Board is empowered to change the characterization of the discharge 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.

2.  Aside from the mail incident, the applicant’s military record is without a discreditable incident of record and, according to the reports from the examining psychiatrist and the confinement facility personnel, his duty performance, to include service in Vietnam, had been faultless.  

3.  While the Board does not condone the applicant's serious misconduct, the Board determined that his misconduct was an aberration in his military record.  The Board also noted that the applicant was instantly remorseful of his act of misconduct, and confessed. 

4.  The evidence of record shows that the applicant was not classified as a chronic offender and that due to his prior military record, his reputation, and his personal conduct while in confinement, his extenuating circumstances were accepted in mitigation and he received clemency.

5.  Considering the facts and circumstances of this case, the elapse of time, the
9 months served in confinement, the extenuating circumstances accepted in mitigation, and, in recognition of his honorable service in Vietnam, the Board found that clemency was warranted.  It appears that the interest of justice would best be served by changing the applicant’s characterization of service to general, under honorable conditions. 

6.  Accordingly, in the interest of justice and as a matter of clemency, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected to show that the individual concerned was separated from active duty on 10 May 1971 with a General Discharge Certificate.

2.  That the Department of the Army issue to the individual concerned a General Discharge Certificate from the Army of the United States, dated 10 May 1971, in lieu of the BCD of the same date now held by him.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___sac__  __amc__  ___klw__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000040234	
SUFFIX		
RECON		
DATE BOARDED	20000720	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19710510	
DISCHARGE AUTHORITY	AR 635-200 C11	
DISCHARGE REASON	144.6800.0000	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	144.9106.0000	
2.		
3.		
4.		
5.		
6.