IN THE CASE OF: BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160000921 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 IN THE CASE OF: BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160000921 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. IN THE CASE OF: BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160000921 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 the characterization of his service from under other than honorable conditions to honorable and a personal appearance hearing. 2. The applicant states at the time he went absent without leave (AWOL), he had been back from Vietnam for about 5 months. He was having family problems and he was not thinking rationally. He believes justice has been served and he has matured. He further states he needs the characterization of his service upgraded so he will qualify for medical benefits. 3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) for the period ending 7 June 1974. 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 entered active duty in the Regular Army (RA) on 12 September 1969, and upon completing training, was awarded military occupational specialty (MOS) 11E (Armor Crewman). 3. His DA Form 20 (Enlisted Qualification Record) shows he was assigned to the Federal Republic of Germany on 1 February 1970. 4. On 11 May 1970, the applicant was honorably discharged for immediate reenlistment. On 12 May 1970, the applicant reenlisted in the RA. 5. His DA Form 20 show he departed his assignment in Germany on 5 December 1970. He returned to the continental United States on or around 3 January 1971 and he attended and completed training for MOS 64B (Heavy Vehicle Driver). 6. His DA Form 20 shows he was assigned to Vietnam on 15 May 1971 and arrived at his unit of assignment on 1 June 1971. 7. He received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 30 December 1971 for wrongfully possessing unauthorized items on or about 28 December 1971. 8. His DA Form 20 shows he departed Vietnam on or about 17 January 1972 and he arrived at his new assignment in Fort Campbell, KY, on or about 18 February 1972. 9. He received NJP under the provisions of Article 15 of the UCMJ on 7 July 1972 for driving an unregistered privately owned vehicle on post. 10. On 28 July 1973, he pled guilty at a special court-martial to two specifications of being AWOL from on or about 7 September 1972 to on or about 26 January 1973 and from on or about 23 April 1973 through on or about 28 June 1973. The court sentenced him to a forfeiture of $180.00 per month for 4 months, confinement at hard labor for 75 days, reduction to private/E-1, and a bad conduct discharge (BCD). The sentence was adjudged on 3 August 1973. 11. On 20 August 1973, the convening authority approved the applicant?s sentence, and forwarded the record of trial to The Judge Advocate General of the Army for review by a Court of Military Review. 12. On 5 September 1973, the U.S. Army Court of Military Review considered the entire record and held the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, the findings of guilty and the sentence were affirmed. 13. The applicant requested clemency from the Army and Air Force Clemency and Parole Board. In his request, he reported his AWOLs were due to serious family and marital difficulties. However, clemency was not recommended and the applicant was placed on excess leave on 4 October 1973. On 1 November 1973, the Secretary of the Army approved the recommendation of the Army and Air Force Clemency and Parole Board and clemency was not granted. 14. He was discharged on 7 June 1974. His DD Form 214 shows he was discharged under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial with an under other than honorable conditions characterization of service and issuance of a DD Form 259A (BCD Certificate). It further shows he completed 3 years, 10 months, and 26 days of total active service and he had 304 days of lost time. 15. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 11-2, in effect at that time, stated that an enlisted person would be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial imposing a BCD and after such affirmed sentence had been duly executed. This regulation provided: a. 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. b. 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. 2. 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 change a court-martial 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. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. Additionally, applicants may be represented by counsel at their own expense. DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. 2. The evidence of record shows the applicant's trial by a special 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 characterized the misconduct for which the applicant was convicted. 3. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected. 4. The evidence shows he informed the Army and Air Force Clemency and Parole Board he was experiencing family problems. The board considered his statement, and denied clemency. 5. 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. 6. In addition, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for veterans benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. The granting of veteran's benefits is not within the purview of the ABCMR. Therefore, any questions regarding eligibility for benefits should be addressed to the Department of Veterans Affairs. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000921 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000921 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2