RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 August 2005 DOCKET NUMBER: AR20050001249 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. John J. Wendland, Jr. Analyst The following members, a quorum, were present: Ms. Kathleen A. Newman Chairperson Mr. William D. Powers Member Ms. Marla J.N. Troup Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his bad conduct discharge be upgraded. 2. The applicant states, in effect, that his discharge was unjust. The applicant adds that he sought assistance in correcting this injustice some years ago, but his request was apparently mishandled and never submitted to the proper authority. 3. The applicant provides a one-page, self-authored statement, two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 28 September 1970 and 10 September 1975; a Federal Bureau of Investigation (FBI) letter, dated 17 September 1974; an undated, self-authored narrative about his war experiences; two letters of reference; five training certificates; a certificate of appreciation; a special act or service award; gaming license; security officer identification; and a psychological evaluation report. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 10 September 1975, the date of his discharge. The application submitted in this case is dated 24 October 2004. 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant’s records show that he enlisted on 29 August 1969. He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman). 4. The applicant’s records show that he served seven months in the Republic of Vietnam, from 2 December 1970 through 28 July 1971. He was awarded the Combat Infantryman Badge, Purple Heart for wounds in action on 11 April 1971, and Army Commendation Medal for meritorious service from December 1970 to August 1971. 5. A DA Form 3545 (Deserter Wanted by the Armed Forces), dated 8 December 1971, shows the applicant went absent without leave (AWOL) on 16 August 1971 and was dropped from the rolls on 16 September 1971. 6. The applicant’s records contain Fort Campbell, Kentucky, Special Court-Marital Order Number 17, dated 3 April 1972, that shows the applicant was convicted of being AWOL for the period 16 August 1971 through 4 January 1972. His punishment was confinement at hard labor for three months (with 60 days being suspended), forfeiture of $150.00 pay for three months, and reduction to the rank of private/pay grade E-1. 7. A DA Form 3835 (Notice of Unauthorized Absence from United States Army), dated 13 August 1973, shows the applicant was reported AWOL from his unit beginning 14 July 1973 and dropped from the rolls of the organization on 9 August 1973. He was returned to military control on 4 November 1973. 8. A DA Form 3835, dated 17 January 1974, shows the applicant was reported AWOL on 10 January 1974 and was dropped from the rolls of the organization that same date. He was returned to military control on 22 January 1974. 9. On 15 February 1974, the applicant was convicted by special-court martial for being AWOL for the period 14 July 1973 through 4 November 1973. His punishment was a bad conduct discharge, confinement at hard labor for one month, forfeiture of $150.00 pay for one month, and reduction to the rank of private/pay grade E-1. The sentence was approved and promulgated by Fort Carson, Colorado, Special Court-Marital Order Number 71, dated 3 May 1974. 10. A DA Form 3835, dated 7 May 1974, shows the applicant was reported AWOL from his unit beginning 7 April 1974 and dropped from the rolls of the organization on 7 May 1974. 11. On 8 July 1974, the U.S. Army Court of Military Review, reviewed and affirmed the findings and sentence. The personnel records show that the decision was mailed to the applicant's home of record and he indicated he did not desire to appeal further, and requested final action be taken on his case. 12. The service records show that on 6 September 1974, the brigadier general serving as acting commander of Fort Carson, Colorado, approved execution of applicant's sentence. 13. U.S. Army Military Personnel Center [Alexandria, Virginia] Letter Order Number 9-4, dated 10 September 1975, discharged the applicant with a Bad Conduct Discharge. The applicant's records show that he was advised of his discharge via letter and his separation documents were also mailed to him on that date. 14. The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 10 September 1975 under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). Applicant served 3 years, 8 months, and 13 days of active service, with 248 days of time lost due to AWOL. 15. Personnel records show the applicant acknowledged receipt his of discharge documents on Post Office Department Form 3811, dated 24 September 1975. 16. On 21 August 1986, an attorney representing the applicant, requested documents from the applicant's records in an effort to upgrade his discharge. 17. There is no evidence showing that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 18. The applicant's self-authored statement states that he called his company while at home to notify them he would be a day late in returning. He states that he was told he didn't need to return since he was close to his expiration of term of service. There is no evidence in the applicant's military personnel service records to substantiate that he telephonically contacted his unit and was told that he didn't need to return. 19. The applicant provided a Department of Health and Human Services, Confidential Psychological Evaluation, dated 25 October 2004, which documents the applicant's evaluation for persistent psychological symptoms that the applicant links to injuries and traumatic events suffered while serving in Vietnam. The evaluating psychologist recommended forwarding the evaluation material for consideration by those specializing in this disorder at the Veterans Administration. There is no evidence in the applicant's military personnel service records that he was diagnosed with and/or treated for psychological symptoms. 20. Army Regulation 635-200, in effect at that time, governs the separation of enlisted Soldiers on active duty. Section IV of chapter 3 provides that a bad conduct discharge will be given to a Soldier pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. 21. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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 performed approximately three and a half years of honorable service. 2. The evidence shows that the applicant's character of service was honorable during his first enlistment of one year and 29 days when he was discharged for immediate reenlistment and subsequently served in the Republic of Vietnam. 3. Upon return to the United States, the applicant went AWOL and was dropped from the rolls on three separate occasions. He was in a dropped from the rolls status when apprehended by civilian authorities and subsequently discharged. The applicant provided insufficient evidence, and there is no evidence in the available records, which supports his contention that his bad conduct discharge should be upgraded. 4. The applicant provided letters of support and training certificates attesting to his good post-service conduct. While his post-service conduct is noteworthy, good post-service conduct by itself is not sufficient to overcome his military record of indiscipline, or a basis for upgrading his discharge. 5. The applicant provided insufficient evidence, and there is no evidence in available records, that shows he was diagnosed or treated for any illnesses that were the result of his military service. 6. The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted. 7. By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited. The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 8. In order to justify correction of a military record the applicant must show to the satisfaction of the ABCMR, or it must otherwise satisfactorily appear, that the record was in error or unjust. The applicant did not submit any evidence that would satisfy this requirement. 9. The applicant does not warrant an upgrade and did not provide sufficient evidence for granting the relief requested. It would be inappropriate to grant clemency based on the facts in this case. 10. Records show the applicant should have discovered the alleged error or injustice now under consideration on 24 September 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 23 September 1978. The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __KAN__ __WDP__ __MJNT _ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that 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. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. ____Kathleen A. Newman_____ CHAIRPERSON INDEX CASE ID AR20050001249 SUFFIX RECON YYYYMMDD DATE BOARDED 20050823 TYPE OF DISCHARGE BCD DATE OF DISCHARGE 19750910 DISCHARGE AUTHORITY AR 635-200, Chapter 11 DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY Mr. Chun ISSUES 1. 144.6300.0000 2. 3. 4. 5. 6.