IN THE CASE OF: BOARD DATE: 11 February 2016 DOCKET NUMBER: AR20150007952 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 an upgrade of his characterization of service. 2. The applicant states he was young and knows what he did was wrong. He believes he was improperly trained because he was not sent to advanced individual training (AIT) but only received on job training (OJT) as a member of the honor guard. He wasn't trained for combat but upon completion of his honor guard assignment he was reassigned to combat in Vietnam. Prior to his court-martial he performed his duties in an excellent manner. He does not believe that he was given fair legal representation prior to being discharged. He did not fully understand his obligation to the Army due to his education and upbringing. 3. The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and three letters of support. 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 was inducted on 16 January 1969 at age 23. There is no evidence he was offered any formal military occupational specialty training. 3. On 4 April 1969, he was assigned Fort MacArthur as an OJT 57A (Duty Soldier). The applicant reports this assignment as being a member of the funeral honor guard. 4. On 24 June 1969, he was transferred to the Army Replacement Unit at Fort Lewis, Washington in preparation for assignment to Vietnam. 5. On 27 October 1969, a special court-martial found the applicant guilty of being absent without leave (AWOL) for the period 26 August 1969 to 16 October 1969. His punishment was 20 days confinement and forfeiture of $75.00 per month for one month. The applicant served 10 days in confinement with the remainder being remitted. 6. On 20 August 1970, a special court-martial found the applicant guilty of AWOL from 17 November 1969 through 28 July 1970. His sentence was 6 months confinement, forfeiture of $50.00 per month for 6 months, and a bad conduct discharge (BCD). 7. The court-martial convening authority approved the finding and sentence on 10 September 1970, directed that, except for the BCD, the sentence was to be executed. 8. On 9 October 1970, the confinement and forfeiture portion of his sentence was suspended for 4 months to be automatically remitted unless the suspension was vacated. 9. The United States Army Court of Military Review affirmed the court-martial findings and sentence on 17 December 1970. 10. The applicant was discharged on 11 January 1971 with his service characterized as under other than honorable conditions (the characterization associated with a BCD at the time). His DD Form 214 shows 1 year, 1 month, and 4 days of total active service with 326 days of lost time. 11. The letters of support describe the applicant as a good provider and a dependable, honest person. He is sensitive to others and is a good father. He has done his duty to his family and has had no involvement with the law. 12. The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board that would disturb the finality of a court-martial conviction. The Board is only empowered to change the severity of the sentence imposed, 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. 13. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. It provides the following: a. An honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. b. A general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. DISCUSSION AND CONCLUSIONS: 1. Trial by court-martial was warranted by the gravity if the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulation, and the discharge appropriately characterizes the misconduct for which the applicant was convicted 2. The applicant's allegation regarding not receiving fair legal representation is unsupported by the evidence of record. 3. The letters submitted by the applicant contain insufficient evidence or mitigation to support an upgrade of the applicant’s characterization of service. 4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. There is no evidence of mitigating circumstances that would warrant clemency in this case. 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) AR20150007952 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007952 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1