PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:          13 NOVEMBER 2003                   
	DOCKET NUMBER:  AR2003090536

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Ms. Eloise C. Prendergast		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 that his bad conduct discharge be upgraded to honorable or general.

3.  The applicant states that his father and stepbrother were career soldiers.  He had never seen the officer [whom he struck], and he [the officer] was not in uniform.  He did not know who he was.  He has a good [post-service] record.  His past has haunted him for years.  His wife recently passed away.  She had asked him to try to clear his name.

4.  The applicant’s military records show that he enlisted in the Georgia Army National Guard on 3 December 1962.  He was trained as a bridge specialist, completed active duty for training with an honorable characterization of service at Fort Leonard Wood, Missouri on 20 July 1963, and released to his Army National Guard unit.  On 21 October 1963 he was discharged from the Georgia Army National Guard because of his change of residence to another state, and he was transferred to the Army Reserve Control Group (Annual Training) at St. Louis.

5.  On 8 June 1965 the applicant was discharged from the Army Reserve.  On   10 June 1965 he was inducted into the Army of the United States and assigned to an engineer company at Fort Hood, Texas.  In October 1965 he was assigned as a bridge specialist to a transportation company at Fort Riley Kansas.  On        5 February 1966 the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his place of duty.  In March 1966 he was assigned as a light vehicle driver, and then as a storage specialist to a transportation company in Vietnam.

6.  On 4 April 1966 the applicant received nonjudicial punishment for disobeying a lawful order by drinking on duty, and by failing to shave every day.

7.  On 22 August 1966 the applicant was arraigned and tried before a general court-martial which convened at Saigon, Vietnam.  He pled not guilty to the charge of disrespect toward a second lieutenant, his superior officer; not guilty to striking that same officer in the face with his fist; and guilty to sleeping on guard duty.  The court found him not guilty of the charge of disrespect; not guilty of striking his superior officer (striking a superior officer in the execution of his duties), but guilty to unlawfully striking the second lieutenant (assault, consummated by battery); and guilty to sleeping on post.

8.  The court sentenced him to forfeiture of all pay and allowances, to be confined at hard labor for one year and six months, and to be reduced to pay grade E-1, and to be discharged from the service with a bad conduct discharge.

9.  The court-martial proceedings are unavailable to the Board; however, the review of the proceedings by the Staff Judge Advocate, The Support Troops, United States Army Vietnam, are available.  The review indicated that the applicant was then 21 years old, that he had over 1 year and 5 months of service, a 9th grade education, and that his character of service was excellent.   That review also revealed, for the prosecution:  

•	At approximately 2330 hours on 12 June 1966, the duty officer of the         110th Transportation Company, a second lieutenant, heard a disturbance.  Clad in his underwear, he proceeded to the scene, where he identified himself as Lieutenant "B," the duty officer.  He was not wearing any insignia of rank.  When he told everyone to be at ease, everyone complied except the applicant, who was highly intoxicated.  Lieutenant "B" went back to the orderly room and put on his trousers and combat boots.  When he came back out the applicant was in the street.  When Lieutenant "B" approached him, the accused was profane, and he struck the lieutenant five or six times.  In the opinion of all the witnesses, except the lieutenant, the applicant did not recognize Lieutenant "B" as an officer.  

•	For the defense:  The defense case consisted of evidence relating to the applicant's lack of knowledge that he was striking and being disrespectful to a superior officer.  Two other witnesses, who were called, both opined that the applicant was intoxicated and did not recognize the lieutenant as his superior officer.  The applicant elected to be sworn, stated that both his father and brother were in the service, so he volunteered for the draft and for Vietnam.  He drank a fifth of scotch and about ten cans of beer during the day of the incident and did not remember striking the lieutenant or being disrespectful to him.  

10.  The Staff Judge Advocate stated that the sentenced adjudged by the court did not exceed the maximum authorized for the offense; however, recommended that the confinement portion of the sentence be reduced to one year.  He opined that there were no errors, which materially prejudiced the applicant's substantial rights, except as he had previously noted; that the applicant was guilty beyond a reasonable doubt, and that the findings of guilty were correct in law and fact.   

11.  Following the findings of guilty, the defense called as witnesses the applicant's first sergeant, who stated that he thought the applicant would be of benefit to the Army in an infantry unit and should be allowed to remain on active duty; his mess sergeant, who characterized the applicant as a good worker and who would be willing to have him back even after convictions; and his supervisor, who stated that he would like to have the applicant back because he believed that with guidance the applicant could perform satisfactorily.  

12.  The applicant's company commander recommended that the applicant be tried by general court-martial but not eliminated from the service.  The applicant, in his testimony, stated he had been working the night shift and had worked until noon before he went on guard duty, where he was found sleeping.  

13.  In the post-trial interview, the applicant expressed a desire for restoration.  Since his brother and father were both in the Army, he particularly wanted a chance for restoration so that he could finish his tour in Vietnam and earn an honorable discharge.  The Staff Judge Advocate, however, indicated that because of the applicant's failure to conform to military standards of duty and discipline, further reduction or suspension of the sentence was not warranted.  He recommended that the findings and only so much of the sentence that provided for a bad conduct discharge, confinement at hard labor one year, reduction to pay grade E-1, and forfeiture of all pay and allowances, be approved.  On 30 September 1966 the convening authority approved the sentence as recommended.      

14.  On 15 November 1966 orders were published assigning the applicant to the United States Disciplinary Barracks at Fort Leavenworth, Kansas.

15.  On 30 December 1966 the Board of Review affirmed the findings and the sentence.  On 14 March 1967 the Court of Military Appeals denied the petition to grant a review of the decision of the Board of Review.

16.  On 31 March 1967 General Court-Martial Order Number 225, Headquarters, Fort Leavenworth was published, ordering that the applicant's sentence be duly executed.  The applicant was discharged under conditions other than honorable on 17 April 1967, under the provisions of Army Regulation 635-204.  He was released from confinement on 10 June 1967, the expiration date of his sentence.

17.  The maximum punishment authorized by the Manual for Courts-Martial for sleeping on guard duty (misbehavior of sentinel or lookout) is a dishonorable discharge and confinement at hard labor for one year.  The maximum punishment for assault (consummated by a battery) is confinement at hard labor for six months and forfeiture of two-thirds pay per month for six months.

18.  Army Regulation 635-204, then in effect, states that an enlisted person will be discharged with a bad conduct discharge only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.

CONCLUSIONS:

1.  In view of the nature of the applicant's offenses, his bad conduct discharge was warranted.  The applicant could have received a dishonorable discharge for sleeping on post.    

2.  The evidence of record indicates that the applicant was far from a sterling soldier, having received nonjudicial punishment on two occasions prior to his trial by court-martial; nevertheless, his character of service was deemed excellent as indicated by the Staff Judge Advocate when reviewing his case; and three of the noncommissioned officers in his unit indicated that he would be of benefit to the Army, despite his conviction.  Apparently, his company commander, who initiated charges against him, believed that the applicant could still be of service.

3.  Nonetheless, the applicant's conduct was prejudicial to the good order and discipline of the Army.  By the same token, the applicant has been truthful, admitting his misconduct.  He has freely admitted sleeping on duty, only indicating in effect, that his lack of sleep from being up all night caused him to do so.  He has never denied hitting the lieutenant, stating only that he was so intoxicated he could not remember the incident.  

4.  Thirty-six years have gone by since the applicant's bad conduct discharge.  He has been appropriately punished for his misconduct.  To continue to saddle him with the burden of his bad conduct discharge is unjust.  As a matter of equity, the applicant's discharge should be upgraded to a general discharge under honorable conditions.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by correcting his 17 April 1967 DD Form 214 (Report of Transfer or Discharge) to show that he was discharged under honorable conditions. 

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

__AAO __  __REB__  __ECP __  DENY APPLICATION

		_     Arthur A. Omartian_____
        			CHAIRPERSON

INDEX

CASE ID	AR2003090536	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031113	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.