BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160002401 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: 7 September 2017 DOCKET NUMBER: AR20160002401 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: 7 September 2017 DOCKET NUMBER: AR20160002401 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 his bad conduct discharge be upgraded to a general discharge. 2. The applicant states being in Vietnam it was very difficult for him to maintain in his mind. He was a very young boy with no direction and no purpose at the time. 3. The applicant provides: * DD Form 4 (Enlistment Contract, Armed Forces of the United States), dated 17 October 1969 * Page 1 of his DA Form 2-1 (Personnel Qualification Record - Part II) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 29 January 1965 * DD Form 214 for the period ending 26 January 1968 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 4 September 1962, at the age of 18, the applicant enlisted in the Regular Army for 3 years. He completed basic combat and advanced individual training and was awarded military occupation specialty (MOS) 111.00 (Light Weapons Infantryman). 3. On 30 January 1965, he immediately reenlisted for 3 years. On 6 May 1965, he was awarded MOS 61F (Postal Clerk). a. He was assigned to the 24th Army Postal Unit in France from 16 February 1965 to 26 June 1966. He was assigned to Headquarters and Headquarters Company, United States Army Support, Thailand from 5 July 1967 to 10 January 1968. On 1 September 1967, he was awarded MOS 67N (UH1 Helicopter Repairman). b. On 26 January 1968, he was honorably discharged. c. Headquarters, USA Joint Military Advisory Command Orders 7297, dated 18 December 1968, awarded him the Bronze Star Medal for meritorious service in connection with military operations against a hostile force in the theater of the Republic of Vietnam from May 1967 to January 1968. 4. On 17 October 1969, at the age of 25, the applicant enlisted in the Regular Army for 3 years. He immediately reenlisted on 16 March 1970 for 6 years. a. He was assigned to 1st Army/Air Force Post Office, Vietnam, from 7 July 1971 to 2 April 1972. b. Headquarters, United States Army Vietnam General Orders Number 707, dated 4 April 1972, awarded him the Army Commendation Medal for meritorious service in the Republic of Vietnam from June 1971 to March 1972. c. He was awarded the Air Medal and the Combat Infantryman Badge, shown on his DD Form 214 with an effective date of 11 April 1978. 5. On 15 May 1972, the applicant was assigned to the 228th Adjutant General Company (Postal) in Germany. 6. On 4 July 1974, the applicant was promoted to staff sergeant (SSG)/pay grade E-6. 7. On 9 September 1975, the applicant was tried before a general court-martial. a. He pled guilty and was found guilty of: (1) Committing sodomy on or about 4 January 1975 with a female child under the age of 16 years. (2) Committing sodomy on or about 15 February 1975 with a female child under the age of 16 years. (3) Committing a lewd and lascivious act upon the body of a female under 16 years of age on or about 15 February 1975. (4) Wrongfully soliciting a child under the age of 16 years to commit sodomy with him on 18 December 1973. (5) Taking indecent liberties with the body of a female under 16 years of age on or about January 1974. (6) Unlawfully touching a female child under the age of 16 years on the leg with his hands on or about 15 June 1974. b. His sentence consisted of confinement at hard labor for 4 years and 3 months, reduction to private/pay grade E-1, forfeiture of all pay and allowances and to be discharged from the service with a bad conduct discharge. 8. On 10 November 1975, the convening authority approved the sentence. 9. On 23 January 1976, the U.S. Army Court of Military Review affirmed the finding of guilty and the sentence. 10. On 14 April 1976, the United States Court of Military Appeals granted the petition of the accused a review. The results of that review are not available. 11. On 1 March 1978, the applicant's bad conduct discharge was ordered to be executed. So much of the sentence to confinement at hard labor that was in excess of 4 years was remitted. 12. On 11 April 1978, the applicant was issued a bad conduct discharge. He completed 5 years, 5 months, and 10 days of net service this period. He had 189 days of time lost prior to expiration of his term of service (ETS) and 757 days of time lost subsequent to his normal ETS. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was 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 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: 1. The applicant contends being in Vietnam was very difficult for him to maintain in his mind. He contends he was a very young boy with no directions and no purposes at the time. The record shows he was 18 years of age when he initially enlisted in the Army. He was honorably discharged in 1968 and on 17 October 1969 he again enlisted in the Regular Army at the age of 25. He was 27 years of age when he was assigned to the 1st Army/Air Force Post Office, Vietnam. He was 29 and 30 years of age at the time of the offenses he was convicted of by a court-martial. 2. His discharge was the result of a court-martial and the finding of guilty and the sentence were properly reviewed and affirmed by the U.S. Army Court of Military Review. There is no evidence of error or injustice in this case. 3. The law prohibits any redress of the finality of a court-martial conviction by this Board. The Board 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. The Board is empowered to upgrade the applicant's character of service if it finds compelling evidence indicating clemency is appropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002401 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002401 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2