BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20160000737 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____x___ ____x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20160000737 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20160000737 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 reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge (UOTHC) to honorable. 2. The applicant states he was treated unjustly because he was wounded. He fought for 8 months. He came home and was hospitalized for drug addiction. 3. The applicant provides: * Department of Veterans Affairs (VA) letter, dated 25 September 2015 * VA Form 21-4138 (Claim Form) undated, unsigned * VA Form 21-526 (Application for Compensation and/or Pension), signed and dated 10 October 2014 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 19 December 1966 the applicant enlisted in the Regular Army. He was sent to Fort Dix, New Jersey, for his basic combat training (BCT). 3. On 27 February 1967 after completing BCT, the applicant was enrolled in advanced individual training (AIT) for light weapons infantryman specialty skill training. 4. On or about 15 May 1967, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to report for reveille formation. 5. In June and July 1967, the applicant attended basic airborne training at Fort Benning, Georgia. He graduated the course and was reassigned to Company C, 3rd Battalion (Airborne), 187th Infantry Regiment, located at Fort Campbell, Kentucky. 6. On or about 1 December 1967 the applicant’s unit deployed to the Republic of Vietnam. 7. On 3 December 1967 the applicant accepted NJP for being absent without proper authority during the period 26-28 November 1967. 8. On 30 July 1968 the applicant accepted NJP for failing to go at the time prescribed on 28 July 1968, to his appointed place of duty. 9. Summary Court-Martial Order Number 20, 3rd Battalion (Airborne), 187th Infantry Regiment, dated 6 August 1968, announced the applicant’s conviction and sentence for the following violations of the UCMJ: a. Article 86 for unauthorized absence by failing to go at the prescribed time on 31 July 1968, to his appointed place of duty; and b. Article 87 for negligently missing movement on 2 August 1968. c. His sentence consisted of reduction from private first class, pay grade E-3 to private, pay grade E-1, forfeiture of $68.00, and 1 month confinement at hard labor (suspended for 30 days). 10. Summary Court-Martial Order Number 23, 3rd Battalion (Airborne), 187th Infantry Regiment, dated 14 August 1968, vacated the suspended portion of the sentence imposed on 6 August 1968 and directed execution of his sentence to confinement at hard labor for 1 month. 11. Special Court-Martial Order Number 53, 3rd Battalion (Airborne), 187th Infantry Regiment, dated 13 November 1968, announced the applicant’s conviction and sentence for violation of Article 86, unauthorized absence from his unit from on or about 12 October to 1 November 1968. The sentence included forfeiture of $68.00 pay per month for 6 months and confinement at hard labor for 6 months (suspended for 6 months). 12. Special Court-Martial Order Number 21, 101st Airborne Division (Airmobile), dated 9 April 1970, announced the applicant’s conviction and sentence on 27 November 1969 for violation of Article 86 for unauthorized absence from on or about 17 March to 9 August 1969. His punishment included forfeiture of $54.00 pay per month for 6 months, confinement at hard labor for 6 months, reduction to the lowest enlisted grade and a bad conduct discharge. The sentence was approved. The record of trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review. Pending completion of the review, the applicant was confined in Long Binh, Republic of Vietnam, or elsewhere as competent authority may have directed. 13. On 26 April 1970, the applicant was released from confinement and placed in a casual status while enroute to the United States. 14. Special Court-Martial Order Number 20, 82nd Airborne Division, Fort Bragg, North Carolina, dated 31 March 1971, announced the sentence, to include a bad conduct discharge, was affirmed. No confinement remained to be served. 15. Records show the applicant was also absent without authority from 19 June 1970 to 18 March 1971 and from 27 April 1971 to 14 January 1972. 16. The applicant's DD Form 214 shows he was discharged on 17 January 1972 and assigned separation program number 292 (other than desertion – court-martial). He received a UOTHC characterization of service (applicable at the time to individuals receiving a bad conduct discharge). He had 981 days of lost time due to his unauthorized absences and periods of confinement. 17. On or about 17 April 1975, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his characterization of service. The ADRB determined that he had been properly discharged and found no cause for clemency. 18. A letter from the Adjutant General, U.S. Army, date stamped 18 November 1977, addressed to the applicant, stated that the ABCMR had considered on 28 September 1977 the applicant’s application pertaining to his rehabilitation since his discharge together with his available military records. The Board determined that in view of his record of prior courts-martial convictions and his extended period of absence without leave in a combat zone, he had been properly separated with a bad conduct discharge. The Board unanimously determined that there was no material error or injustice in his case and denied his application. 19. There is no evidence in the applicant’s records to support his statement he was wounded in action. His name is not listed on the Vietnam casualty roster as being wounded in action. 20. The VA documents provided by the applicant show the VA determined his military service was not honorable for purposes of obtaining VA benefits for himself or his dependents. The VA stated the applicant had been charged and convicted of multiple violations of Article 86 of the UCMJ while deployed in a combat zone. The evidence of record shows he had a persistent pattern of willful misconduct. REFERENCES: 1. 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. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable discharge or bad conduct discharge) 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. b. Paragraph 3-7a provides an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b provides that a general discharge 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. DISCUSSION: 1. The applicant had a pattern of leaving his appointed place of duty and remaining absent in a combat zone. He was convicted by three courts-martial. The third court-martial imposed a bad conduct discharge and he was discharged accordingly. 2. There is no substantive evidence available showing the applicant suffered from a medical condition or was wounded in action or that he used drugs that were in anyway responsible for his repeated acts of misconduct and extended periods of unauthorized absence. It is noted that his misconduct began while he was still in initial entry training and continued throughout his military service. 3. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000737 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000737 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2